Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives. (c) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation. (h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus. (j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 4 contracts
Samples: Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company and Selling Stockholders contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 4 hereof, to the accuracy of the statements of the Company and Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders in all material respects of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) (i) The Company and the KKR Selling Stockholder shall have furnished requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and KKR Selling Stockholder, to furnish to the Representatives the opinionan opinion letter and an advice letter, each dated the Closing Date, Date and in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final ProspectusExhibit C hereto.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 4 contracts
Samples: Underwriting Agreement (Gardner Denver Holdings, Inc.), Underwriting Agreement (Gardner Denver Holdings, Inc.), Underwriting Agreement (Gardner Denver Holdings, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Xxxxx Xxxx & Fxxx Xxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibits A-1 and A-2, respectively.
(c) The Representatives shall have received from Axxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may shall reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board Treasurer or the President or any Vice President and the principal financial or accounting officer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company contained in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatenedthreatened by the Commission; and
(iii) Since since the date of the most recent consolidated financial statements included of the Company and its consolidated subsidiaries, incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP The Company shall have furnished to the Representatives a letter or certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Company, dated the Closing Date, substantially in the form set forth in Exhibit B.
(f) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change material adverse change, or any development involving a prospective material adverse change, in or affecting the capital stock (other than issuances business, financial position or results of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity operations of the Company and its subsidiaries, taken as a whole, except as set forth in or any decreases contemplated in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, is in the reasonable judgment of the RepresentativesRepresentatives (other than a defaulting Underwriter under Section 9 hereof), so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX, 00000, on the Closing Date.
Appears in 4 contracts
Samples: Underwriting Agreement (Mastercard Inc), Underwriting Agreement (Mastercard Inc), Underwriting Agreement (Mastercard Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx X. Xxxxxx, Senior Attorney and Assistant Secretary of the Company, to have furnished to the Representatives the his opinion, dated the Closing Date and addressed to the Representatives in substantially the form attached hereto as Exhibit A.
(c) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company, will have furnished to the Underwriters its opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, in substantially the form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.attached hereto as Exhibit B.
(cd) The Representatives shall have received from Axxxxx & Bird Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or and the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, or such other officers of the Company as the Representatives may agree, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change change, or any development involving a prospective material adverse change, in or affecting the general financial condition (financial or other), earnings, results of operations or business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) At the date hereof and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Underwriters letters, dated respectively as of the date hereof and as of the Closing Date, in form and substance satisfactory to the Underwriters of the type described in AICPA Statement on Auditing Standard No. 72, as amended, with respect to the financial statements and certain financial information of the Company contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(g) At the date hereof and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Underwriters letters, dated respectively as of the date hereof and as of the Closing Date, in form and substance satisfactory to the Underwriters of the type described in AICPA Statement on Auditing Standard No. 72, as amended, with respect to the financial statements and certain financial information of Nalco from January 1, 2010 contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(h) At the date hereof and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to have furnished to the Underwriters letters, dated respectively as of the date hereof and as of the Closing Date, in form and substance satisfactory to the Underwriters of the type described in AICPA Statement on Auditing Standard No. 72, as amended, with respect to the financial statements and certain financial information of Nalco as of or prior to December 31, 2009 contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the general financial condition or results of operations or business of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gj) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jk) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel for the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, on the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (Ecolab Inc), Underwriting Agreement (Ecolab Inc), Underwriting Agreement (Ecolab Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx, Xxxx & Xxxxxxxx LLP, outside counsel for the Company, to have furnished to the Representatives the opinion, dated the Closing Date, in form their opinion and substance reasonably acceptable to the Representatives, and the negative assurance letter, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, in the form agreed between such counsel for the Company, or such other counsel reasonably acceptable to and the Representatives.
(c) Xxxxxxx Xxxx Xxxxx, Corporate Counsel to the Company, shall have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Representatives, in the form agreed between such counsel and the Representatives.
(d) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may shall reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company contained in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At On the Execution Time date of this Agreement and also on the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as the respective dates of the Execution Time and as of the Closing Datedelivery thereof, in form and substance satisfactory to the Representativesyou, confirming that they are an independent registered public accounting firm within the meaning containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any (i) any change in to the capital stock (other than issuances except for the issuance of capital stock upon exercise options or the issuance or vesting of stock options, awards or restricted stock swaps and stock appreciation rights which were outstanding units pursuant to the Company’s equity incentive plans existing on the date hereof or any shares issued pursuant to “earnout” provisions in any completed acquisition by the Company, and except for repurchases of common stock pursuant to the latest consolidated balance sheet included Company’s previously announced common stock repurchase authorization) or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases Material Adverse Effect, otherwise than as set forth or contemplated in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, the suspension or any development involving a prospective change, material limitation of trading in or affecting the condition (financial or other), earnings, business or properties capital stock of the Company and its subsidiaries on The Nasdaq Global Select Market, the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make Representatives makes it impractical impracticable or inadvisable to proceed with the offering or the delivery of the Securities as on the terms and in the manner contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any decrease intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement in the ratings rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersExchange Act).
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (Intel Corp), Underwriting Agreement (Intel Corp), Underwriting Agreement (Intel Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx Xxxxxxx & Fxxx Xxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx Xxxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(i) The Company shall have applied to list the Securities on the New York Stock Exchange, and satisfactory evidence of such action shall have been provided to the Representatives.
(j) The Representatives shall have received from counsel counsel, satisfactory to the Representatives Representatives, such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ik) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jl) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their its counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 3 contracts
Samples: Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates certificate pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLPcaused Xxxxx Day, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached as Exhibit A hereto.
(c) The Company shall have requested and caused Xxxxxxx X’Xxxxx, general counsel for the Company, to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached as Exhibit B hereto.
(d) The Representatives shall have received from Axxxxx Shearman & Bird Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any an Executive Vice President President, and the principal financial or accounting officer or Treasurer of the Company, Company dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, the Disclosure Package and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show roadshow used in connection with to offer the offering of the Securities, Securities identified on Schedule V and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in effect on the condition (financial or otherotherwise), prospects, earnings, business or properties of the Company and its subsidiariesSubsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and covering matters that are ordinarily covered by the PCAOB and containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, however, provided that the letter furnished delivered on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (eg) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and and, subject to Section 11 hereof, all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (Omnicom Group Inc.), Underwriting Agreement (Omnicom Group Inc.), Underwriting Agreement (Omnicom Group Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Xxxxx Xxxx & Fxxx Xxxxxxxx LLP, counsel for the Company, or such other counsel to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives in form and substance reasonably acceptable satisfactory to the Representatives.
(c) The Representatives shall have received from Axxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such legal opinion or opinionsand negative assurance letter, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may shall reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board Treasurer or the President or any Vice President and the principal financial or accounting officer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company contained in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatenedthreatened by the Commission; and
(iii) Since since the date of the most recent consolidated financial statements included of the Company and its consolidated subsidiaries, incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP The Company shall have furnished to the Representatives a letter or certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change material adverse change, or any development involving a prospective material adverse change, in or affecting the capital stock (other than issuances business, financial position or results of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity operations of the Company and its subsidiaries, taken as a whole, except as set forth in or any decreases contemplated in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, is in the reasonable judgment of the RepresentativesRepresentatives (other than a defaulting Underwriter under Section 9 hereof), so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, 00000, on the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (Mastercard Inc), Underwriting Agreement (Mastercard Inc), Underwriting Agreement (Mastercard Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except in the case of Sections 1(kk), (ll) and (mm) or to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders in all material respects of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) (i) The Company and the KKR Selling Stockholder shall have furnished requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the KKR Selling Stockholder, to furnish to the Representatives the opinionan opinion letter and a negative assurance letter, each dated the Closing Date, Date and in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final ProspectusExhibit B hereto.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 3 contracts
Samples: Underwriting Agreement (National Vision Holdings, Inc.), Underwriting Agreement (National Vision Holdings, Inc.), Underwriting Agreement (National Vision Holdings, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the condition that all representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time and the Closing DateDate pursuant to Section 3 hereof, to the accuracy of the if applicable, and any statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, are true and correct in all material respects (except to the performance extent already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects), the condition that the Company and the Selling Stockholders shall have performed, in all material respects, all of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Ropes & Fxxx Xxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the RepresentativesUnderwriters their opinion and negative assurance letter, dated the Closing Date and addressed to the Underwriters, substantially in the forms reasonably satisfactory to the Underwriters.
(c) The Representatives Underwriters shall have received from Axxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such an opinion or opinions, dated the Closing DateDate and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The respective counsel for each of the Selling Stockholders, as indicated in Schedule II hereto, each shall have furnished to the Underwriters its written opinion, dated the Closing Date, substantially in the forms reasonably satisfactory to the Underwriters.
(e) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chairman of Chief Executive Officer and the Board or the President or any Vice President President, and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any amendment or supplement or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(iA) The the representations and warranties of the Company in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(iiB) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiiC) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in effect on the condition (financial or otherotherwise), earningsprospects, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning Underwriters containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are type ordinarily covered by 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, Disclosure Package the Preliminary Prospectus and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesUnderwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives Underwriters such further customary information, certificates and documents as the Representatives Underwriters may reasonably request.
(i) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Underwriters.
(j) At the Execution Time, the Company shall have furnished to the Underwriters a letter substantially in the form of Exhibit A hereto from each officer and certain directors of the Company and the stockholders in each case listed on Schedule V hereto addressed to the Underwriters. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Underwriters and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxx Xxx., Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (Lantheus Holdings, Inc.), Underwriting Agreement (Lantheus Holdings, Inc.), Underwriting Agreement (Lantheus Holdings, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Teekay Parties contained herein as of the Execution Time and Time, the Closing DateDate and any Option Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company Teekay Parties made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company Teekay Parties of its their obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished All corporate, partnership and limited liability company proceedings and other legal matters incident to the Representatives the opinionauthorization, dated the Closing Date, in form and substance reasonably acceptable to validity of this Agreement, the RepresentativesClass A Common Stock, the Registration Statement and the Final Prospectus, and the letter, dated the Closing Date, all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in form and substance reasonably acceptable all material respects to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such all documents as and information that they may reasonably request for the purpose of enabling to enable them to pass upon such matters.
(dc) The Company shall have furnished to the Representatives a certificate of requested and caused Xxxxxx, Xxxxxx & Xxxxxxxx (New York) LLP, special Xxxxxxxx Islands counsel for the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer their written opinion, dated the Closing Date and addressed to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect substantially to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.that:
Appears in 3 contracts
Samples: Underwriting Agreement (Teekay Tankers Ltd.), Underwriting Agreement (Teekay Tankers Ltd.), Underwriting Agreement (Teekay Tankers Ltd.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Dxxxx Xxxx & Fxxx LLPWxxxxxxx, counsel for the Company, or such other counsel reasonably acceptable to furnish to the RepresentativesRepresentative its opinion and 10b-5 statement, dated the Closing Date and addressed to the Representative, in substantially the form of Annex B hereto.
(c) The Representatives Company shall have requested and caused Jxxxxx X. Xxxx, in-house counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from Axxxxx & Bird LLP, the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by (x) the Chairman of Chief Executive Officer and (y) the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securitiesthereto, and this Agreement and thatthat to the best of their knowledge:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in Material Adverse Effect on the condition (financial or otherotherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP shall have furnished to furnish to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)Representative letters, dated respectively as of the Execution Time and as of the Closing Date, Date in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentative.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Disclosure Package (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Representative and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of the underwriters’ counsel set forth in the Underwriting Agreement, on the Closing Date.
Appears in 3 contracts
Samples: Debt Underwriting Agreement (Patriot Coal CORP), Debt Underwriting Agreement (Patriot Coal CORP), Debt Underwriting Agreement (Patriot Coal CORP)
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters each Underwriter to purchase the Securities under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution date hereof, as of the date of the Time and of Sale Prospectus, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing DateDate with respect to such Securities (including the filing of any document incorporated by reference therein) and as of the Closing Date with respect to such Securities, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no No stop order suspending the effectiveness of the Registration Statement Statement, as amended from time to time, or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened; all requests by the Commission for additional information shall have been complied with to the satisfaction of the Underwriters; and the Prospectus with respect to such Securities shall have been filed or transmitted for filing with the Commission pursuant to Rule 424(b) not later than the Commission’s close of business on the second day following the execution and delivery of this Agreement or, if applicable, such other time as may be required by Rule 424(b).
(b) The Company shall have furnished to the Representatives Underwriters the opinion of Xxxx X. Xxxxxx, Esquire, Assistant Vice President and Senior Counsel of the Company, dated the Closing Date, to the effect that:
(i) The Company and each Significant Subsidiary of the Company has been duly incorporated and is a duly existing corporation under the laws of its respective state of incorporation, with corporate power and authority to own its properties and conduct its business as described in the Time of Sale Prospectus and the Prospectus; and neither the Company nor any such subsidiary is required to be qualified to do business as a foreign corporation in any other jurisdiction in which failure to so qualify would have a Material Adverse Effect;
(A) At the time of filing the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities, the Company was not an “ineligible issuer” as defined in Rule 405 under the Act;
(iii) The Securities have been duly authorized, executed, authenticated, issued and delivered;
(iv) The Securities constitute valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture; and the Securities conform to the description thereof contained in the Time of Sale Prospectus and the Prospectus;
(v) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Securities by the Company, except such as have been obtained and made under the Act and the Trust Indenture Act and such as may be required under state securities laws;
(vi) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, this Agreement and the Indenture, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which, to the knowledge of such counsel, the Company or any subsidiary is a party or by which the Company or any subsidiary is bound or to which any of the property or assets of the Company or any subsidiary is subject, except for such conflicts, breaches, violations or defaults as would not, individually or in the aggregate, have a Material Adverse Effect, nor will such action result in any violation of the provisions of (i) the articles of incorporation or bylaws or other organizational documents, as applicable, of the Company or any Significant Subsidiary or (ii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company, any subsidiary or any of its respective properties, except, in the case of (ii) above, for such violations that would not, individually or in the aggregate, have a Material Adverse Effect;
(vii) The descriptions in the Registration Statement, the Time of Sale Prospectus and the Prospectus of legal and governmental proceedings and contracts and other documents and the descriptions of statutes in the section captioned “Regulatory” (or similar caption) in item 1 of the Company’s most recently filed Form 10-K are accurate in all material respects and fairly present the information required to be shown; no legal or governmental proceedings are required to be described in the Time of Sale Prospectus and the Prospectus which are not described as required; and there are no contracts or documents of a character required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus;
(viii) The Indenture and this Agreement have been duly authorized, executed and delivered by the Company; and
(ix) Except as described in the Time of Sale Prospectus and the Prospectus, there is no action, suit or proceeding pending, nor to the best of such counsel’s knowledge is there any action, suit or proceeding threatened, which might reasonably be expected to result in a Material Adverse Effect or which is required to be disclosed in the Registration Statement. In rendering such opinion, such counsel shall also state that although such counsel has not undertaken to determine independently, does not express an opinion as to, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus and has made no independent check or verification thereof (except for those referred to in the opinion in subsection (vii) of this Section 5(b)), no facts have come to such counsel’s attention that have caused such counsel to believe that (i) any part of the Registration Statement, when such part became effective, or any further amendment thereto made by the Company prior to the date hereof (other than the financial statements and the financial data and related schedules incorporated by reference or included therein or excluded therefrom and the exhibits to the Registration Statement, including the Form T-1, as to which such counsel expresses no opinion or belief), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, (ii) as of the Applicable Time, the Time of Sale Prospectus (other than the financial statements and financial data and related schedules incorporated by reference or included therein or excluded therefrom, or the exhibits to the Registration Statement, including the Form T-1, as to which such counsel expresses no opinion or belief) contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (iii) as of its date and the Closing Date, the Prospectus as then amended or supplemented or as amended or supplemented by any further amendment or supplement thereto made by the Company prior to the date hereof (other than the financial statements and financial data and related schedules incorporated by reference or included therein or excluded therefrom, and the exhibits to the Registration Statement, including the Form T-1, as to which such counsel expresses no opinion or belief) contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In addition, solely for purposes of rendering the opinion referred to in (iii) above, such counsel may rely, as to matters of New York law, on the opinion of Wachtell Lipton Xxxxx & Xxxx referred to below.
(c) The Underwriters shall have received an opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx Wachtell Lipton Xxxxx & Fxxx LLPXxxx, counsel for the Company, or such other counsel reasonably acceptable to in substantially the Representatives.form attached hereto as Annex I.
(cd) The Representatives Underwriters shall have received from Axxxxx Xxxxxxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure PackageTime of Sale Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request it requests for the purpose of enabling them it to pass upon such matters.
(de) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chairman of the Board or Board, the Chief Executive Officer, an Executive Vice President or any a Senior Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageTime of Sale Prospectus, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, Prospectus and this Agreement and thatthat to the best of their knowledge after reasonable investigation:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date Date, with the same effect as if made on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent latest audited financial statements included or incorporated by reference in the Disclosure Package Time of Sale Prospectus and the Final Prospectus (exclusive Prospectus, neither the Company nor any of its consolidated subsidiaries has sustained any supplement thereto)material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and there has been no material adverse change nor any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its consolidated subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in by the Disclosure Package Time of Sale Prospectus and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(ef) At the Execution Time time this Agreement is executed and at the Closing Date, Ernst & Young LLP LLP, as independent accountants for the Company, shall have furnished to the Representatives Underwriters a letter or letters (which may refer to letters previously delivered to one or more of the RepresentativesUnderwriters), dated respectively as of the Execution Time and as of the Closing Datesuch date, in substantially the form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated attached hereto as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letterAnnex II.
(fg) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package Time of Sale Prospectus and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been occurred (i) any change material adverse change, or any development involving a prospective material adverse change, in the capital stock (other than issuances of capital stock upon exercise of stock optionscondition, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included financial or incorporated by reference otherwise, or in the Registration Statementearnings, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt business or decreases in the consolidated net assets, net current assets or shareowners’ equity operations of the Company or any decreases and its subsidiaries, taken as a whole, from that set forth in the consolidated net operating revenues Time of Sale Prospectus or (ii) any material change or decrease in the total or per share amounts of income before extraordinary those items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package Time of Sale Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s CorporationProspectus.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(i) On or after the Applicable Time and subsequent to the execution and delivery of this Agreement, and prior to the Closing Date there shall not have occurred any downgrading, nor shall notice have been given of any intended or potential downgrading or placement “under review” with negative implications or with no indication of the direction of the possible change of the rating accorded any securities of, or guaranteed by, the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date Date, by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile telegraph confirmed in writing.
Appears in 3 contracts
Samples: Underwriting Agreement (Lincoln National Corp), Underwriting Agreement (Lincoln National Corp), Underwriting Agreement (Lincoln National Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except in the case of Section 1(kk), (ll) and (mm) or to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 4 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders in all material respects of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or threatened.
(b) (i) The Company and the KKR Selling Stockholders shall have furnished requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the KKR Selling Stockholders, to furnish to the Representatives the opinionan opinion letter and a negative assurance letter, each dated the Closing DateDate or any settlement date, as the case may be, and in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.Exhibit B hereto;
Appears in 3 contracts
Samples: Underwriting Agreement (Academy Sports & Outdoors, Inc.), Underwriting Agreement (Academy Sports & Outdoors, Inc.), Underwriting Agreement (Academy Sports & Outdoors, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Ropes & Fxxx Xxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives, substantially in the form attached as Exhibits B-1 and B-2.
(c) The Company shall have requested and caused Xxxxxx Hall & Xxxxxxx LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received from Axxxxx & Bird Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and Chief Executive Officer and the principal financial or accounting officer or Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any amendment or supplement or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference substantially in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated form as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus set forth in this paragraph (e) include any supplement thereto at the date of the letter.Exhibit D.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and its subsidiaries the Prospectus (exclusive of any supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer, director and specified stockholders, as set forth in Schedule III, of the Company addressed to the Representatives. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000, on the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (Genocea Biosciences, Inc.), Underwriting Agreement (Genocea Biosciences, Inc.), Underwriting Agreement (Genocea Biosciences, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time date hereof and the Closing each Delivery Date, to the accuracy of the any material statements of the Company made in any certificates certificates, opinions, affidavits, written statements or letters furnished to the Representatives or to Xxxxxxx Xxxxxxx & Xxxxxxxx ("Underwriters' Counsel") pursuant to the provisions hereofthis Section 6, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Prospectus shall have been filed with the Commission within pursuant to Rule 424 not later than 10:00 a.m., New York City time, on the applicable business day following the date of this Agreement or such later date and time periods prescribed for such filings as shall be consented to in writing by Rule 433; and no stop the Representatives.
(b) No order suspending the effectiveness of the Registration Statement Statement, as amended from time to time, shall have been issued be in effect and no proceedings for that such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been instituted or threatened.
(b) The Company shall have furnished complied with to the Representatives the opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, reasonable satisfaction of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have received from Axxxxx & Bird LLPbeen any change or decrease specified in the letter referred to in paragraph (h) of this Section 6 which, counsel for in the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale judgment of the SecuritiesRepresentatives, makes it impracticable or inadvisable to proceed with the Indenture, offering and delivery of the Depositary Shares representing such Shares as contemplated by the Registration Statement, the Disclosure Package, Statement and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such mattersProspectus.
(d) The Company shall have furnished to the Representatives the opinion of a certificate of the Company, signed by the Chairman of the Board Deputy General Counsel or the President or any Vice President and the principal financial or accounting officer or Treasurer of Chief Legal Officer for the Company, dated the Closing Date, day of each Delivery Date to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements been duly organized and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued is validly existing and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with good standing under the laws of any country, other than the United States, in whose currency Securities are denominated, the validity jurisdiction of the Securities, the Prospectus its incorporation with all requisite corporate power and other related matters authority to own and operate its properties and to conduct its business as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth described in the Final Prospectus.
(jii) Prior to the Closing DateThe Deposit Agreement, the Company shall have furnished to Shares, the Representatives such further information, certificates Depositary Shares and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled Depositary Receipts conform in all material respects when to the descriptions thereof contained in the Final Prospectus.
(iii) The Company has an authorized capitalization as set forth in the Final Prospectus, and as provided all of the issued shares of capital stock of the Company (including the Shares being delivered on such Delivery Date) have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the Depositary Shares representing the Shares delivered on such Delivery Date have been duly and validly authorized by the Company; and assuming the due execution by the Depositary of the Deposit Agreement and the due execution by the Depositary and, if required by the Deposit Agreement, the Registrar of the Depositary Receipts in accordance with the terms of the Deposit Agreement and upon the deposit by or on behalf of the Underwriters of the Shares with the Depositary pursuant to the Deposit Agreement, such Depositary Shares will represent legal and valid interests in the Shares delivered on such Delivery Date and the Depositary Receipts will constitute valid evidence of such interests in such Shares and will be entitled to the benefits of the Deposit Agreement.
(iv) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any Shares pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel;
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated in this Agreement or the compliance by the Company with the provisions of the Deposit Agreement, except for such consents, approvals, authorizations or if orders as have been obtained under the Securities Act and such as may be required under the Exchange Act and the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares and the Depositary Shares by the Underwriters.
(vi) Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules.
(vii) To the best of such counsel's knowledge, neither the Company nor any of its Named Subsidiaries is in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument known to such counsel, the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole.
(viii) This Agreement and the Deposit Agreement have been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement and the Deposit Agreement by the Company will not constitute a breach of, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the opinions and certificates mentioned above assets of the Company or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance any of its Named Subsidiaries pursuant to the Representatives terms of, or constitute a default under, any material agreement, indenture or instrument known to such counsel and their counselto which the Company or any of its Named Subsidiaries is a party of is bound, this Agreement and all obligations or result in a violation of the Underwriters hereunder may be cancelled atcorporate charter or by-laws of the Company or any of its Named Subsidiaries or any order, rule or at regulation known to such counsel of any time prior tocourt or governmental agency having jurisdiction over the Company, any of its Named Subsidiaries or any of their respective properties, the Closing Date by the Representatives. Notice effect of such cancellation shall which would be given material to the Company in writing or by telephone or facsimile confirmed in writingand its subsidiaries taken as a whole.
Appears in 3 contracts
Samples: Underwriting Agreement (Lehman Brothers Holdings Capital Trust Iii), Underwriting Agreement (Lehman Brothers Holdings Inc), Underwriting Agreement (Lehman Brothers Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any the certificates to be delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of caused Skadden, Arps, Slate, Mxxxxxx Xxxxxxx & Fxxx Xxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit A hereto.
(c) The Company shall have requested and caused the Vice President and General Counsel for the Company or an assistant General Counsel or Corporate Counsel to the Company that has been admitted to practice law in the State of Connecticut, to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit B hereto.
(d) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect Date and addressed to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related Representatives regarding such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the Chairman of the Board or the President or any Vice President Chief Executive Officer and (y) the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement amendments or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securitiessupplements thereto, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse Material Adverse Effect, except as set forth in, incorporated by reference in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, letters, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing statements and information of a type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given or incorporated by reference in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the offices of counsel for the Underwriters, at Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Stanley Works), Underwriting Agreement (Stanley Works)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein as of the Execution Applicable Time and the Closing Date, to the accuracy of the statements of the Company Partnership made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel for the Partnership, to have furnished to the Representatives the its opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, in substantially the form of Exhibit A hereto.
(c) The Partnership shall have requested and caused Xxxxx & Xxxxxxx, A Professional Corporation, counsel for the letterPartnership, to have furnished to the Representatives its opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, in substantially the form of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the RepresentativesExhibit B hereto.
(cd) The Representatives shall have received from Axxxxx Shearman & Bird Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company Partnership shall have furnished to the Representatives a certificate of the CompanyPartnership, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Companygeneral partner of the Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus, the Disclosure Package and any supplement supplements or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, thereto and this Agreement and that:
(i) The the representations and warranties of the Company Issuers in Section 1 of this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the CompanyPartnership’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(ef) At The Partnership shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Execution Representatives, at the Applicable Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters “comfort letters” (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Applicable Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentatives and PricewaterhouseCoopers LLP, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the certain unaudited financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package the Preliminary Prospectus used most recently prior to the Applicable Time and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereto), there shall not have been (i) any adverse change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the business, properties, earnings, results of operations or financial condition of the Partnership and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the any series of Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(gh) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the ratings rating of any of the CompanyPartnership’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company Partnership shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling, LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (ONEOK Partners LP), Underwriting Agreement (ONEOK Partners LP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have furnished to the Representatives the opinionreceived from Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth on Exhibit B hereto, of Xxxxxx Xxxxxx Morandi to the effect set forth on Exhibit C hereto and of Shearman & Sterling LLP to the effect set forth on Exhibit E hereto.
(c) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in effect on the condition (financial or other), earningsbusiness, business properties or properties results of operation of the Company and its subsidiariesthe Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At The Representatives shall have received from PricewaterhouseCoopers LLP, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or “comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference Public Company Accounting Oversight Board (United States) (PCAOB) substantially in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as form of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letterExhibit D hereto.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each Section 16 officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, at 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, XX 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has shall have become effective prior to the Execution Timeeffective; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b4(c) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act ), shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; if filing of any Issuer Free Writing Prospectus is required by Rule 433, each such Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have furnished to received the Representatives opinion and 10b-5 statement of Xxxxxx X. Xxxxxx, Vice President, Secretary and General Counsel of the opinionCompany, dated the Closing Date, in form and substance reasonably acceptable to the Representativeseffect set forth in Exhibit A. In rendering such opinion, and such counsel may rely (A) as to matters involving the letterapplication of laws of any jurisdiction other than the State of Wisconsin or the United States, dated the Closing Date, in form and substance reasonably acceptable to the Representativesextent deemed proper and specified in such opinion, upon the opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, other counsel of good standing believed to be reliable and who are satisfactory to counsel for the CompanyUnderwriters and (B) as to matters of fact, or such other counsel reasonably acceptable to the Representativesextent deemed proper, on certificates of responsible officers of the Company and public officials.
(c) The Representatives shall have received the opinion and 10b-5 statement of Xxxxx & Lardner LLP, counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of New York and Wisconsin or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials.
(d) The Representatives shall have received from Axxxxx & Bird Xxxxx Xxxxx LLP, counsel for the Underwriters, such an opinion or opinionsand 10b-5 statement, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, Package and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, solely in their respective capacities as such, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, the Disclosure Package and any supplement amendments or amendments to the Final Prospectussupplements thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus and the Disclosure Package and the Final Prospectus (exclusive of any supplement theretosupplements thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Final Prospectus and the Disclosure Package and the Final Prospectus (exclusive of any supplement theretosupplements thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof).
(ef) At the Execution Time and on the Closing Date, Ernst & Young PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as date of the Closing Datethis Agreement, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and covering matters that are ordinarily covered by containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package Package, the Preliminary Final Prospectus and the Final Prospectus; provided, however, provided that the letter furnished delivered on and dated as of the Closing Date shall use a “cut-off” ’ date no more than three business days prior to the Closing Date. References to the Registration Statement, any Preliminary Final Prospectus and the Final Prospectus in this paragraph (ef) include any supplement amendments or supplements thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereofthereof after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement theretothereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof) or any Issuer Free Writing Prospectus (exclusive of any supplement thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), there shall not have been (i) any change specified in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in Closing Date comfort letter from the letter or letters dated the date hereof referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the business, financial condition (financial or other), earnings, business or properties of the Company and its subsidiaries on a consolidated basis the effect of which in any case referred to in clause paragraph (ig)(i) or (ii) aboveof this Section 6, is, in the judgment of the Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereofthereof after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement theretothereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof) and any Issuer Free Writing Prospectus (exclusive of any supplement thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof).
(gh) Subsequent to the earlier of the Initial Sale Time and the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Johnson Controls Inc), Underwriting Agreement (Johnson Controls Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A or Rule 401(g)(2) under the Act shall have been instituted or threatened. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Act.
(b) The Company XxXxxxxxx Will & Xxxxx LLP, special counsel for the Company, shall have furnished to the Representatives Underwriters its written opinion and negative assurance letter, each addressed to the opinionUnderwriters, dated the Closing Date, in form and substance reasonably acceptable satisfactory to the Representatives, and substantially in the letterform of Annex I hereto.
(c) Xxxxx Peabody LLP, counsel for the Issuers, shall have furnished to the Underwriters its written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably acceptable satisfactory to the Representatives, substantially in the form of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.Annex II hereto;
(cd) The Representatives shall have received from Axxxxx Xxxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman Company’s Treasurer or an executive officer of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of Company with specific knowledge about the Company’s financial and operational matters reasonably satisfactory to the Representatives, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show Electronic Road Show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company each Issuer in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or pursuant to Section 8A or Rule 401(g)(2) under the Act has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of since February 28, 2017 there shall not have occurred any supplement thereto), there has been no material adverse change in the condition (financial event that would have a Material Adverse Effect or other), earnings, business or properties of the Company and its subsidiariesany development that would reasonably be expected to have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(ef) At The Company shall have requested and caused KPMG LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the RepresentativesUnderwriters), dated respectively as of the Execution Time and as of the Closing Date, in each case in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning Representatives containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants “comfort letters” to underwriters with respect to the financial statements of the Company and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease beyond that reported in the capital stock (other than issuances paragraph 5(a) or 6 of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined under Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(hi) The Representatives FINRA shall not have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, raised any objection with respect to compliance with the laws fairness and reasonableness of any country, other than the United States, in whose currency Securities are denominated, underwriting terms and arrangements relating to the validity offering of the Securities, the Prospectus and other related matters as they may require, and the .
(j) The Company shall have furnished to the Representatives, at the Execution Time, a certificate of the Company, signed by the Company’s general counsel, Treasurer or an executive officer of the Company with specific knowledge about the subject matter thereof, in form and substance reasonably satisfactory to the Representatives, and such counsel such documents certificate shall have been reaffirmed as they request for of the purpose of enabling them to pass upon such mattersClosing Date.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jk) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Constellation Brands, Inc.), Underwriting Agreement (Constellation Brands, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except in the case of Section 1(ll), (mm) and (nn) or to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, 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 the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Xxxxxxx Xxxxxxx & Fxxx Xxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to furnish to the RepresentativesRepresentative an opinion letter and a negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and in form and substance reasonably satisfactory to the Representative, as set forth in Exhibit C hereto.
(c) The Representatives Representative shall have received from Axxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such an opinion or opinionsletter and negative assurance letter, each dated the Closing DateDate or any settlement date, as the case may be, and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by (x) the Chairman of chairman, chief executive officer, president or vice president and (y) the Board chief financial officer, treasurer or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing DateDate or any settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any amendment or supplement or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i1) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on (except in the case of Section 1 (ll), (mm) and as of (nn) or to the Closing Date with extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) at the same effect as if made Execution Time and on the Closing Date or any settlement date, as the case may be, and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing DateDate or any settlement date, as the case may be;
(ii2) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherotherwise), earnings, business or properties results of operations of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businesstaken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(3) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose or pursuant to Section 8A under the Act have been instituted or, to the Company’s knowledge, threatened.
(e) At the Execution Time and at the Closing DateDate or any settlement date, Ernst & Young LLP as the case may be, the Company shall have furnished requested and caused KPMG LLP to furnish to the Representatives Underwriters a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)“comfort” letter, dated respectively as of the Execution Time Time, and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by a bring-down “comfort lettersletter,” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior or any settlement date, as the case may be, in form and substance reasonably satisfactory to the Closing Date. References Representative, confirming that they are independent registered public accountants within the meaning of the Exchange Act and within the meaning of the rules of the Public Company Accounting Oversight Board and confirming certain matters with respect to the Final Prospectus audited and unaudited financial statements and other financial and accounting information of the Company contained in this paragraph (e) include the Disclosure Package and the Prospectus, including any supplement thereto at the date of the applicable letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (BrightSpring Health Services, Inc.), Underwriting Agreement (BrightSpring Health Services, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time date hereof and the Closing each Delivery Date, to the accuracy of the any material statements of the Company made in any certificates certificates, opinions, affidavits, written statements or letters furnished to the Representatives or to Xxxxxxx Xxxxxxx & Xxxxxxxx ("Underwriters' Counsel") pursuant to the provisions hereofthis Section 6, to the performance by the Company of its respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Prospectus shall have been filed with the Commission within pursuant to Rule 424 not later than 10:00 a.m., New York City time, on the applicable business day following the date of this Agreement or such later date and time periods prescribed for such filings as shall be consented to in writing by Rule 433; and no stop the Representatives.
(b) No order suspending the effectiveness of the Registration Statement Statement, as amended from time to time, shall have been issued be in effect and no proceedings for that such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been instituted or threatened.
(b) The Company shall have furnished complied with to the Representatives the opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, reasonable satisfaction of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have received from Axxxxx & Bird LLPbeen any change or decrease specified in the letter referred to in paragraph (g) of this Section 6 which, counsel for in the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale judgment of the SecuritiesRepresentatives, makes it impracticable or inadvisable to proceed with the Indenture, offering and delivery of the Depositary Shares representing such Shares as contemplated by the Registration Statement, the Disclosure Package, Statement and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such mattersProspectus.
(d) The Company shall have furnished to the Representatives the opinion of a certificate of the Company, signed by the Chairman of the Board Deputy General Counsel or the President or any Vice President and the principal financial or accounting officer or Treasurer of Chief Legal Officer for the Company, dated the Closing Date, day of each Delivery Date to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements been duly organized and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued is validly existing and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with good standing under the laws of any country, other than the United States, in whose currency Securities are denominated, the validity jurisdiction of the Securities, the Prospectus its incorporation with all requisite corporate power and other related matters authority to own and operate its properties and to conduct its business as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth described in the Final Prospectus.
(jii) Prior to the Closing DateThe Deposit Agreement, the Company shall have furnished to Shares, the Representatives such further information, certificates Depositary Shares and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled Depositary Receipts conform in all material respects when to the descriptions thereof contained in the Final Prospectus.
(iii) The Company has an authorized capitalization as set forth in the Final Prospectus, and as provided all of the issued shares of capital stock of the Company (including the Shares being delivered on such Delivery Date) have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the Depositary Shares representing the Shares delivered on such Delivery Date have been duly and validly authorized by the Company; and assuming the due execution by the Depositary of the Deposit Agreement and the due execution by the Depositary and, if required by the Deposit Agreement, the Registrar of the Depositary Receipts in accordance with the terms of the Deposit Agreement and upon the deposit by or on behalf of the Underwriters of the Shares with the Depositary pursuant to the Deposit Agreement, such Depositary Shares will represent legal and valid interests in the Shares delivered on such Delivery Date and the Depositary Receipts will constitute valid evidence of such interests in such Shares and will be entitled to the benefits of the Deposit Agreement.
(iv) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any Shares pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel.
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated in this Agreement or the compliance by the Company with the provisions of the Deposit Agreement, except for such consents, approvals, authorizations or if orders as have been obtained under the Securities Act and such as may be required under the Exchange Act and the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares and the Depositary Shares by the Underwriters.
(vi) Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules.
(vii) To the best of such counsel's knowledge, neither the Company nor any of its Named Subsidiaries is in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument known to such counsel, the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole.
(viii) This Agreement and the Deposit Agreement have been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement and the Deposit Agreement by the Company will not constitute a breach of, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the opinions and certificates mentioned above assets of the Company or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance any of its Named Subsidiaries pursuant to the Representatives terms of, or constitute a default under, any material agreement, indenture or instrument known to such counsel and their counselto which the Company or any of its Named Subsidiaries is a party of is bound, this Agreement and all obligations or result in a violation of the Underwriters hereunder may be cancelled atcorporate charter or by-laws of the Company or any of its Named Subsidiaries or any order, rule or at regulation known to such counsel of any time prior tocourt or governmental agency having jurisdiction over the Company, any of its Named Subsidiaries or any of their respective properties, the Closing Date by the Representatives. Notice effect of such cancellation shall which would be given material to the Company in writing or by telephone or facsimile confirmed in writingand its subsidiaries taken as a whole.
Appears in 2 contracts
Samples: Underwriting Agreement (Lehman Brothers Holdings Capital Trust V), Underwriting Agreement (Lehman Brothers Holdings Capital Trust V)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein as of the Execution Applicable Time and the Closing Date, to the accuracy of the statements of the Company or the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company and Guarantors pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Guarantors, to have furnished to the Representatives the its opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, in substantially the form of Exhibit A hereto.
(c) The Company shall have requested and caused GableGotwals, counsel for the Company and the letterGuarantors, to have furnished to the Representatives its opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, in substantially the form of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the RepresentativesExhibit B hereto.
(cd) The Representatives shall have received from Axxxxx Shearman & Bird Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company and the Guarantors shall have each furnished to the Representatives a certificate of the CompanyCompany and the Guarantor, as the case may be, signed by the Chairman of the Board or the their respective Chief Executive Officer, President or any a Vice President and the principal financial or accounting officer or Treasurer of the CompanyChief Financial Officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus, the Disclosure Package and any supplement supplements or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, thereto and this Agreement and that:
(i) The the representations and warranties of the Company Issuers in Section 1 of this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the Company’s or the Guarantors’ knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(ef) At The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Execution Representatives, at the Applicable Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters “comfort letters” (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Applicable Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentatives and PricewaterhouseCoopers LLP, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the certain unaudited financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package the Preliminary Prospectus used most recently prior to the Applicable Time and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereto), there shall not have been (i) any adverse change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the business, properties, earnings, results of operations or financial condition of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the any series of Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(gh) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the ratings rating of any of the Company’s or the Guarantors’ debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company and the Guarantors shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone telephone, email or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling, LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date, or as otherwise agreed by the Company and the Representatives.
Appears in 2 contracts
Samples: Underwriting Agreement (Oneok Inc /New/), Underwriting Agreement (Oneok Inc /New/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinionrequested and caused Xxxxxx, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx Xxxxxxxxxx & Fxxx Xxxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Schedule V hereto.
(c) The Representatives shall have received from Axxxxx Skadden, Arps, Slate, Xxxxxxx & Bird Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or Board, the Chief Executive Officer, the President or any Senior Vice President and by the principal financial or accounting officer or Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to stating in effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Registration Statement, Disclosure Package the Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to June 30, 2010, nothing came to their attention which caused them to believe that, with respect to the period subsequent to June 30, 2010, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt or short-term borrowings of the Company and its subsidiaries or the capital stock of the Company or decreases in current assets or the shareholders’ equity of the Company, as compared with the amounts shown on the June 30, 2010 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; provided, howeveror for the period from July 1, that 2010 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, income before income taxes or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter furnished on and dated shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Closing Date shall use a “cut-off” date no more than three business days prior Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Closing DateRegistration Statement, including the information set forth under the captions “Ratio of Earnings to Fixed Charges” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, and the information included or incorporated by reference in Items 1, 1A, 6, 7 and 7A of the Company’s Annual Report on Form 10-K and the information included in “Management’s Discussion and Analysis of Financial Conditions and Results of Operations” included in the Company’s Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, change in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of PG&E Corporation’s or the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Four Times Square, New York, New York, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Pacific Gas & Electric Co), Underwriting Agreement (Pg&e Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of caused Skadden, Arps, Slate, Mxxxxxx Xxxxxxx & Fxxx Xxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives., in substantially the form attached hereto as Exhibit A.
(c) The Representatives shall have received from Axxxxx Xxxxxx X. Xxxxxxxx, Managing Director, Deputy General Counsel and Assistant Secretary, his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Exhibit B.
(d) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in effect on the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are type ordinarily covered by included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or with respect to the Company incorporated by reference in the Registration Statement, Disclosure Package Statement and the Final Prospectus; provided, however, provided that the letter furnished delivered on and dated as of the Closing Date shall use a “cut-offoff date” not earlier than the date no more than three business days prior to the Closing Datehereof. References to the Final Prospectus in this paragraph (ef) include any supplement thereto at the date of the such letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Time, there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a reasonably foreseeable prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (BlackRock Inc.), Underwriting Agreement (BlackRock Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of at the Execution Time date and time that this Agreement is executed and delivered by the parties hereto, at the Applicable Time, and at the Closing Date, Date and to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b4(I)(c) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives Underwriters the opinionopinion of Hunton Xxxxxxx Xxxxx LLP, local counsel for the Company, dated the Closing Date, in form and substance reasonably acceptable to the Representativeseffect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the Commonwealth of Virginia, with corporate power and authority to own, lease and operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; and
(ii) Each significant subsidiary as defined in Rule 405 of Regulation C under the Securities Act (each a “Significant Subsidiary”) of the Company has been duly incorporated or formed, as the case may be, and is validly existing as a corporation or limited liability company, as the lettercase may be, in good standing under the laws of the jurisdiction of its incorporation or formation, as the case may be, has organizational power and authority to own, lease and operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus.
(c) The Company shall have furnished to the Underwriters the opinion of the Executive Vice President, Chief Legal Officer and Corporate Secretary, the General Counsel or an Associate General Counsel of the Company, dated the Closing Date, in form and substance reasonably acceptable to the Representativeseffect that:
(i) The Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which it owns or leases substantial properties or in which the conduct of its business requires such qualification except where the failure to so qualify or be in good standing would not have a material adverse effect on the Company and its subsidiaries, considered as one enterprise;
(ii) To the best of such counsel’s knowledge, each Significant Subsidiary of the Company is duly qualified as a foreign corporation or limited liability company, as the case may be, to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify or be in good standing would not have a material adverse effect on the Company and its subsidiaries, considered as one enterprise; all of the issued and outstanding capital stock or membership interests, as the case may be, of Skaddeneach Significant Subsidiary has been duly authorized and validly issued, Arpsis fully paid and nonassessable, Slateand, Mxxxxxx except for directors’ qualifying shares, if any, is owned, directly or indirectly, by the Company free and clear of any mortgage, pledge, lien, encumbrance, claim or equity, except as would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, considered as one enterprise;
(iii) This Agreement and the Indenture have been duly authorized, executed and delivered by the Company;
(iv) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated herein, except for a filing of any Preliminary Prospectus or the Final Prospectus under Rule 424(b) of the Securities Act and such as may be required under state securities laws;
(v) The execution, delivery and performance of this Agreement and the issuance and sale of the Notes and compliance with the terms and provisions thereof will not result in a material breach or violation of any of the terms and provisions of, or constitute a default under, any statute, rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company or any Significant Subsidiary or any of their properties or, to the best of such counsel’s knowledge, any agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any Significant Subsidiary is bound or to which any of the properties of the Company or any Significant Subsidiary is subject, or the charter, bylaws or operating agreement, as the case may be, of the Company or any Significant Subsidiary;
(vi) The Company has full power and authority to authorize, issue and sell the Notes as contemplated by this Agreement, and the Notes have been duly authorized, executed and delivered by the Company; and
(vii) Each document filed pursuant to the Exchange Act and incorporated by reference in the Disclosure Package and the Final Prospectus complied when filed as to form in all material respects with the Exchange Act and the rules and regulations promulgated thereunder. In addition, such counsel shall state that he or she has, or persons under his or her supervision have, participated in conferences with officers and other representatives of the Company, representatives of Ernst & Fxxx Young LLP, independent auditors for the Company, the Representatives and Counsel for the Underwriters, at which the contents of the Registration Statement and any Preliminary Prospectus, the Disclosure Package or the Final Prospectus and any amendment thereof or supplement thereto and related matters were discussed, and, although such counsel has not undertaken to investigate or verify independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or any Preliminary Prospectus or the Final Prospectus or any amendment thereof or supplement thereto, no facts have come to the attention of such counsel that would lead such counsel to believe (A) that the Registration Statement (other than the historical, pro forma, projected or other financial statements, information and data and statistical information and data included or incorporated by reference therein or omitted therefrom, and Form T-1, in each case as to which no opinion need be given), at the Applicable Time, contained any untrue statement of a material fact, or omitted to state a material fact necessary in order to make the statements therein not misleading or (B) that (i) the Disclosure Package, as of the Applicable Time, and (ii) the Final Prospectus, as amended or supplemented as of its date or as of the Closing Date (in each case, other than the historical, pro forma, projected or other financial statements, information and data and statistical information and data included or incorporated by reference therein or omitted therefrom, in each case as to which no opinion need be given), included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Except as otherwise set forth herein, all references in this Section 5(c) to the Final Prospectus shall be deemed to include any amendment or supplement thereto at the Closing Date.
(d) The Company shall have furnished to the Underwriters the opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to dated the RepresentativesClosing Date, substantially in the form set forth in Exhibits A and B attached hereto.
(ce) The Representatives shall have received from Axxxxx & Bird LLP, counsel Counsel for the Underwriters, Underwriters such opinion or opinionsand negative assurance letter, dated the Closing Date, with respect to the issuance and sale of the Securities, the IndentureNotes, the Registration Statement, the Disclosure Package, Package and the Final Prospectus (together with any supplement theretoas amended or supplemented at the Closing Date) and other related matters as the Representatives they may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Counsel for the Underwriters may rely as to all matters governed by Virginia law on those covered in the opinion of the Hunton Xxxxxxx Xxxxx LLP, local counsel for the Company, referred to above.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer, President or any Vice President and another person who is the principal financial or accounting officer or Treasurer of the Company, or, in their absence, other proper officers of the Company satisfactory to the Representatives, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any amendment or supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, thereto and this Agreement and that, to the best of their knowledge after reasonable investigation:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and as of such date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;; and
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiariessubsidiaries considered as one enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in by the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)thereto after the date hereof) or as described in such certificate.
(eg) At the Execution Applicable Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as of the Execution Applicable Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and covering matters that are containing statements and information of the type ordinarily covered by 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, Disclosure Package Preliminary Prospectus and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries subsidiaries, the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with market the offering or the delivery of the Securities Notes as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement theretothereof or thereto after the date hereof).
(gi) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion Ratings Group or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing Date, the Company shall have furnished furnish to the Representatives such further informationconformed copies of such opinions, certificates certificates, letters and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselCounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder with respect to the Notes may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile telefax confirmed in writing. The documents required to be delivered by this Section 5 will be delivered at the office of Counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (CSX Corp), Underwriting Agreement (CSX Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except in the case of Section 1(kk), (ll) and (mm) or to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, 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 the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or threatened.
(b) (i) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Xxxxxxx Xxxxxxx & Fxxx Xxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to furnish to the Representatives.
(c) The Representatives shall have received from Axxxxx & Bird LLPan opinion letter and a negative assurance letter, counsel for the Underwriters, such opinion or opinions, each dated the Closing DateDate or any settlement date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives case may reasonably requirebe, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.Exhibit C hereto;
Appears in 2 contracts
Samples: Underwriting Agreement (Academy Sports & Outdoors, Inc.), Underwriting Agreement (Academy Sports & Outdoors, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall supplement thereto have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinionrequested and caused Hxxxx & Hxxxxxx L.L.P., dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, U.S. counsel for the Company, or such other and Cxxxxxx Xxxxx, Canadian counsel reasonably acceptable for the Company, to have furnished to the Representatives their opinions substantially in the forms set forth in Exhibits D-1 and D-2 hereto, respectively, dated the Closing Date and any settlement date and addressed to the Representatives.
(c) The Representatives shall have received from Axxxxx Cxxxxx Xxxxxxxx Xxxxx & Bird Hxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing DateDate and any settlement date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date and any settlement date with the same effect as if made on the Closing Date and any settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate and any settlement date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).Material Adverse Effect,
(e) At The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing DateDate and any settlement date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are its an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect stating to the effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Registration Statement, Disclosure Package the Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the six-month period ended December 31, 2006, and as at December 31, 2006; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the shareholders, directors and audit and corporate governance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to June 30, 2006, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; provided;
(2) with respect to the period subsequent to December 31, however2006, that the letter furnished on and dated as of the Closing Date shall use there were any changes, at a “cut-off” specified date no not more than three business five days prior to the Closing Datedate of the letter, in the long-term debt of the Company and its subsidiaries or capital stock of the Company as compared with the amounts shown on the December 31, 2006 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included or incorporated by reference in the Registration Statement, the Preliminary Prospectus, the Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), is not in conformity with the applicable disclosure requirements of Regulation S-K; and they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus, the Final Prospectus and in Exhibit 12.1 of the Registration Statement, including the information set forth under the captions “Prospectus Supplement Summary,” “Risk Factors,” “Recent Developments,” “Dividend History” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, the information in Items 1, 1A, 2, 5, 6, 7, 7A and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the information in Items 1A, 2 and 3 of the Company’s Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and the information in Items 1.01, 8.01 and 9.01 of the information in the Company’s Current Reports on Form 8-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any changeMaterial Adverse Effect, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing DateDate and any settlement date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) The Securities shall have been approved for quotation on the NASDAQ Global Select Market and the Toronto Stock Exchange, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(i) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A to this Agreement from (i) each officer and director of the Company, (ii) IAMGOLD Corporation and (iii) Mxxx Xxxxxx, addressed to the Representatives.
(j) The Underwriters having received duly completed and executed Subscription Agreements from purchasers in the Canadian Jurisdictions by no later than 5:00 p.m. (New York time) on April 9, 2007. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, counsel for the Underwriters, at Oxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Royal Gold Inc), Underwriting Agreement (Royal Gold Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Province contained herein as of the Execution Time date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy of the statements of the Company Province made in any certificates certificate furnished pursuant to the provisions hereof, to the performance by the Company Province of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no No stop order suspending the effectiveness of the Registration Statement Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Province or threatenedthe Representatives shall be contemplated by the SEC; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 P.M., New York City time, on the second business day following the date hereof or transmitted by a means reasonably calculated to result in filing with the SEC by such date; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the U.S. Securities Act, shall have been filed with the SEC under the U.S. Securities Act.
(b) The Company Xxxxxxx XxXxxxxx shall have furnished to the Representatives Representatives, on behalf of the opinionUnderwriters, dated on or prior to the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, a written opinion dated the Closing Date, in form and substance reasonably acceptable Date to the Representativeseffect that, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for based on the Company, or such other counsel reasonably acceptable assumptions and subject to the Representatives.qualifications set forth therein:
(ci) The Representatives shall all necessary action has been duly taken by or on behalf of the Province, and all necessary approvals and consents required under the Applicable Laws have received from Axxxxx & Bird LLPbeen obtained, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to authorize the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness Global Security has been duly authorized, executed and delivered by the Province in accordance with the Applicable Laws and constitutes a valid and legally binding obligation of the Registration Statement has been issued and no proceedings for that purpose have been instituted orProvince, to enforceable against the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included Province in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and accordance with its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.terms;
Appears in 2 contracts
Samples: Underwriting Agreement (Province of New Brunswick), Underwriting Agreement (Province of New Brunswick)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except in the case of Section 1(ll), (mm) and (nn) or to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, 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 the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Xxxxxxx Xxxxxxx & Fxxx Xxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to furnish to the RepresentativesRepresentative an opinion letter and a negative assurance letter, each dated the Closing Date or any settlement date, as the case may be, and in form and substance reasonably satisfactory to the Representative, as set forth in Exhibit C hereto.
(c) The Representatives Representative shall have received from Axxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such an opinion or opinionsletter and negative assurance letter, each dated the Closing DateDate or any settlement date, as the case may be, and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by (x) the Chairman of chairman, chief executive officer, president or vice president and (y) the Board chief financial officer, treasurer or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing DateDate or any settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any amendment or supplement or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i1) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on (except in the case of Section 1 (ll), (mm) and as of (nn) or to the Closing Date with extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) at the same effect as if made Execution Time and on the Closing Date or any settlement date, as the case may be, and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing DateDate or any settlement date, as the case may be;
(ii2) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherotherwise), earnings, business or properties results of operations of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businesstaken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(3) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose or pursuant to Section 8A under the Act have been instituted or, to the Company’s knowledge, threatened.
(e) At the Execution Time and at the Closing DateDate or any settlement date, Ernst & Young LLP as the case may be, the Company shall have furnished requested and caused KPMG LLP to furnish to the Representatives Underwriters a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)“comfort” letter, dated respectively as of the Execution Time Time, and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by a bring-down “comfort lettersletter,” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior or any settlement date, as the case may be, in form and substance reasonably satisfactory to the Closing Date. References Representative, confirming that they are independent registered public accountants within the meaning of the Exchange Act and within the meaning of the rules of the Public Company Accounting Oversight Board and confirming certain matters with respect to the Final Prospectus audited and unaudited financial statements and other financial and accounting information of the Company contained in this paragraph (e) include the Disclosure Package and the Prospectus, including any supplement thereto at the date of the applicable letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Disclosure Package and the Prospectus (exclusive of any amendment thereofor supplement thereto), there shall not have been any change or development involving a prospective change, in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, and after giving effect to the Transaction, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred is, or would reasonably be expected to in clause (i) or (ii) above, isbecome, in the judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as on the terms and in the manner contemplated by in the Registration Statement Disclosure Package and the Prospectus (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any or supplement thereto).
(gi) Subsequent On the Closing Date or any settlement date, as the case may be, the Securities shall have been approved for listing and admitted and authorized for trading on the Exchange, subject only to official notice of issuance.
(j) At or prior to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished caused each officer, director and stockholder of the Company listed on Exhibit A-1 hereto to such counsel such documents as they request for furnish to the purpose Representative, a letter addressed to the Representative substantially in the form of enabling them to pass upon such mattersExhibit A hereto.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jk) Prior to the Closing DateDate or any settlement date, as the case may be, the Company shall have taken all action reasonably required to be taken by it to have the Securities declared eligible for clearance and settlement through DTC.
(l) Prior to the Closing Date or any settlement date, as the case may be, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this AgreementAll opinions, or if any of the opinions letters, evidence and certificates mentioned above or elsewhere in this Agreement shall not be deemed to be in all material respects reasonably satisfactory compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Representatives Representative and their counselcounsel for the Underwriters. The documents required to be delivered by this Section 6 will be available for inspection at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, this Agreement and all obligations of at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Underwriters hereunder may be cancelled at, or at any time Business Day prior to, to the Closing Date by or any settlement date, as the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writingcase may be.
Appears in 2 contracts
Samples: Underwriting Agreement (BrightSpring Health Services, Inc.), Underwriting Agreement (BrightSpring Health Services, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Winston & Fxxx Sxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form satisfactory to the Representatives.
(c) The Representatives shall have received from Axxxxx Skadden, Arps, Slate, Mxxxxxx & Bird Fxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure PackageStatutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President Chief Executive Officer and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration StatementStatement each Preliminary Prospectus, the Disclosure Package, the Final Prospectus, Prospectus and any amendment or supplement or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP The Company shall have furnished to the Representatives a letter certificate signed by the Secretary or letters (which may refer to letters previously delivered to one or more Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and Bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused Withum to have furnished to the Representatives), at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and covering matters that are ordinarily covered by “comfort letters” they have performed a review of the audited financial statements of the Company for the period March 27, 2019 (inception) through March 31, 2019, provided that the cutoff date shall not be more than two business days prior to underwriters with respect to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial information contained or incorporated by reference statement schedules included in the Registration Statement, Disclosure Package the Statutory Prospectus and the Final Prospectus; provided, however, that Prospectus and reported on by them comply as to form in all material respects with the letter furnished on and dated as applicable accounting requirements of the Closing Date shall use Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “cut-offDilution” date no more than three business days prior to and “Capitalization” in the Closing DateStatutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or other), earnings, business otherwise) or properties prospects of the Company Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and its subsidiaries the Prospectus (exclusive of any supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, each of the Insider Letters, the Registration Rights Agreement and the Services Agreement.
(l) At least one Business Day prior to the Closing Date, the Initial Stockholders shall have caused the purchase price for the Private Placement Warrants to be wired to the Company and the Company shall direct the escrow agent to deposit such funds into the Trust Account and to hold such funds in escrow therein.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Underwriters, at 300 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Gxxxx X. Xxxx and Jxxxxxxx Xx, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Diamond Eagle Acquisition Corp. \ DE), Underwriting Agreement (Diamond Eagle Acquisition Corp. \ DE)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of any officer of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Manager of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus shall have been issued and no proceedings for that purpose shall any of those purposes have been instituted or threatenedare pending or, to the Company’s knowledge, threatened or contemplated.
(b) The Company Representatives shall have furnished to the Representatives received (i) the opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Manager to the effect set forth in Exhibit B-1 hereto; (ii) the opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company to the effect set forth in Exhibit B-2 hereto; and (iii) the opinion, dated as of the Closing Date, of Xxxxxxx LLP, special Maryland counsel for the Company to the effect set forth in Exhibit B-3 hereto, each in form and substance reasonably acceptable satisfactory to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the CompanyUnderwriters, together with signed or reproduced copies of such letters for each of the other counsel reasonably acceptable to the RepresentativesUnderwriters.
(c) The Representatives shall have received from Axxxxx & Bird Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering their opinion as aforesaid, Xxxx Xxxxxxxx LLP may rely upon an opinion, dated as of the Closing Date, of Xxxxxxx LLP, as to matters governed by Maryland law, or such other counsel satisfactory to the Representatives.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman chief executive officer of the Board or the President or any Vice President Company and the principal financial or accounting officer or Treasurer of the Company, dated on behalf of the Closing Date, Company to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate signed by the chief executive officer, president or a senior managing director of the Manager and the principal financial officer (or persons having equivalent functions) of the Manager, on behalf of the Manager to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that (i) the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and (ii) the Manager has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(f) At the Execution Time and at the Closing Date, the Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Company and Blackstone and its affiliates included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to At the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated Time and at the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for a certificate signed by the Company, satisfactory Chief Financial Officer of the Company certifying as to the Representatives preparation, completeness and dated accuracy of certain financial and statistical data relating to the Closing DateCompany included or incorporated by reference in the Registration Statement, confirming their opinion as to United States tax matters set forth in the Disclosure Package or the Final Prospectus.
(ji) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(k) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter or letters, substantially in the form of Exhibit A-1 and A-2 hereto, signed by each of the parties identified on Schedule IV hereto (the “Lock-Up Agreements”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions opinions, letters and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Blackstone Mortgage Trust, Inc.), Underwriting Agreement (Blackstone Mortgage Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx Xxxxxxx & Fxxx Xxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx Xxxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel counsel, satisfactory to the Representatives Representatives, such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their its counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have furnished to the Representatives the opinionreceived from Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth on Exhibit B hereto and of Xxxxxx Xxxxxx Morandi to the effect set forth on Exhibit C hereto.
(c) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in effect on the condition (financial or other), earningsbusiness, business properties or properties results of operation of the Company and its subsidiariesthe Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At The Representatives shall have received (i) from PricewaterhouseCoopers LLP, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or “comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference Public Company Accounting Oversight Board (United States) (PCAOB) substantially in the Registration Statementform of Exhibit D hereto and (ii) from BDO Xxxx Xxxxxxx LLP, Disclosure Package at the Execution Time and at the Final Prospectus; providedClosing Date, however“comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), that dated respectively as of the letter furnished on Execution Time and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior Date, in form and substance satisfactory to the Closing Date. References Representatives, confirming that they are an independent registered accounting firm with respect to IXEurope within the Final Prospectus in this paragraph (e) include any supplement thereto at the date meaning of the letterAct and the applicable rules and regulations adopted by the Commission and the PCAOB substantially in the form of Exhibit E hereto.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each Section 16 officer and director of the Company addressed to the Representatives.
(i) Subsequent to the execution and delivery of this Agreement and concurrently with or prior to the Closing Date, the Concurrent Debt Offering shall have been completed. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, at 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, XX 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Securities on the First Closing Date and the Optional Securities on any Optional Closing Date shall be subject to the accuracy of the condition that all representations and warranties on the part of the Company and the Selling Stockholders contained herein were true and correct as of the Execution Time and, as of the applicable Closing Date pursuant to Section 3 hereof, are true and correct in all material respects (except to the Closing Dateextent already qualified by materiality of Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects), to the accuracy of the statements of condition that the Company made and the Selling Stockholders shall have performed, in any certificates pursuant to the provisions hereofall material respects, to the performance by the Company all of its their respective obligations hereunder hereunder, and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Ropes & Fxxx Xxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the RepresentativesUnderwriters on the First Closing Date and the Optional Closing Date, as the case may be, their opinion and negative assurance letter, dated such Closing Date and addressed to the Underwriters, in forms reasonably satisfactory to the Underwriters.
(c) The Representatives Company shall have requested and caused Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, Indiana counsel for the Company, to have furnished to the Underwriters on the First Closing Date and the Optional Closing Date, as the case may be, their opinion, dated such Closing Date and addressed to the Underwriters, in forms reasonably satisfactory to the Underwriters.
(d) The Underwriters shall have received on the First Closing Date and the Optional Closing Date, as the case may be, from Axxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such an opinion or opinions, dated the such Closing Date, with respect Date and addressed to the issuance and sale Underwriters, in forms reasonably satisfactory to the Underwriters.
(e) The respective counsel for each of the SecuritiesSelling Stockholders, the Indentureas indicated in Schedule II hereto, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company each shall have furnished to the Underwriters on the First Closing Date and the Optional Closing Date, as the case may be, its written opinion, dated such counsel such documents as they may Closing Date, in forms reasonably request for satisfactory to the purpose of enabling them to pass upon such mattersUnderwriters.
(df) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chairman of Chief Executive Officer and the Board or the President or any Vice President President, and the principal financial or accounting officer or Treasurer of the Company, dated the such Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any amendment or supplement or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(iA) The the representations and warranties of the Company in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(iiB) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiiC) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in effect on the condition (financial or otherotherwise), earningsprospects, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(eg) At the Execution Time and the at each Closing Date, the Underwriters shall have received a certificate of the Chief Financial Officer of the Company, dated the Execution Time or such Closing Date, as applicable, reasonably satisfactory to the Representatives, as to the accuracy of certain data contained in the Registration Statement, the Disclosure Package and the Prospectus
(h) The Company shall have requested and caused Ernst & Young LLP shall to have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of Underwriters, at the Representatives)Execution Time and at each Closing Date, letters, dated respectively as of the Execution Time and as of the such Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning Underwriters containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are type ordinarily covered by included in accountants “comfort letters” to underwriters with respect to the financial statements of the Company and certain financial information of the Company contained or incorporated by reference in the Registration Statement, Disclosure Package the Preliminary Prospectus and the Final Prospectus; provided.
(i) The Company shall have requested and caused Xxxxx LLP to have furnished to the Underwriters, howeverat the Execution Time and at each Closing Date, that the letter furnished on and letters, dated respectively as of the Execution Time and as of such Closing Date shall use a “cut-off” date no more than three business days prior Date, in form and substance reasonably satisfactory to the Closing Date. References Underwriters containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to the Final financial statements of Skyline Corporation and certain financial information of Skyline Corporation contained in the Registration Statement, the Preliminary Prospectus in this paragraph (e) include any supplement thereto at and the date of the letter.Prospectus
(fj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph paragraphs (eh) and (i) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesUnderwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gk) Subsequent Prior to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, Company and the Company Selling Stockholders shall have furnished to the Underwriters such counsel such further customary information, certificates and documents as they request for the purpose of enabling them to pass upon such mattersUnderwriters may reasonably request.
(il) If indicated in Schedule I hereto as being applicable The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final ProspectusUnderwriters.
(jm) Prior to At the Closing DateExecution Time, the Company shall have furnished to the Representatives such further information, certificates Underwriters a letter substantially in the form of Exhibit A hereto from each officer and documents as certain directors of the Representatives may reasonably request. Company and the stockholders in each case listed on Schedule IV hereto addressed to the Underwriters.
(n) If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Underwriters and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the such Closing Date by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxx Xxx., Xxx Xxxx, Xxx Xxxx 00000, on the applicable Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Skyline Champion Corp), Underwriting Agreement (Skyline Champion Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no No stop order suspending the effectiveness of the Registration Statement Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and any Final Prospectus shall have been filed or mailed for filing with the Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, opinion of Skadden, Arps, Slate, Mxxxxxx White & Fxxx Case LLP, counsel for the Company, or such other counsel reasonably acceptable dated the Closing Date substantially in the form attached hereto as Exhibit A.
(c) The Company shall have furnished to the RepresentativesRepresentatives the opinion of White & Case LLP, counsel for the Company, dated the Closing Date, as to certain intellectual property matters.
(cd) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the SecuritiesInitial Shares, the Indentureany Delayed Delivery Contracts, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board President and Chief Executive Officer or the President or any a Senior Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, Prospectus and this Agreement and thatthat to the best of their knowledge:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, or threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiariesSubsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(ef) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jh) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters have been approved by the Company. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile telegraph confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Aphton Corp), Underwriting Agreement (Aphton Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Partnership contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company Partnership made in any certificates pursuant to the provisions hereof, to the performance by the Company Partnership of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused Xxxxxx & Xxxxxx L.L.P., counsel for the Partnership, to have furnished to the Representatives the its opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, substantially in the form attached hereto as Exhibit A.
(c) The Partnership shall have requested and caused the letterVice President, Deputy General Counsel, Secretary, and Chief Ethics & Compliance Officer of the General Partner to have furnished to the Representatives his opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for substantially in the Company, or such other counsel reasonably acceptable to the Representatives.form attached hereto as Exhibit B.
(cd) The Representatives shall have received from Axxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company Partnership shall have furnished to the Representatives a certificate of the CompanyGeneral Partner, signed by the Chairman Chief Financial Officer of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the CompanyGeneral Partner, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company Partnership in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the CompanyPartnership’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiariesMaterial Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At The Partnership shall have requested and caused Deloitte & Touche LLP, independent public accountants of the Partnership, to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and in form and substance the forms reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within which letters shall cover, without limitation, the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the various financial statements and certain financial information disclosures contained in or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, provided that the letter furnished delivered on and dated as of the Closing Date shall use a “cut-offoff date” date no more not earlier than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the such letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business business, properties or properties results of operations of the Company Partnership and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the CompanyPartnership’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company Partnership shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Enable Midstream Partners, LP), Underwriting Agreement (Enable Midstream Partners, LP)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) heretohereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx X. Xxxxxx, Senior Attorney and Assistant Secretary of the Company, to have furnished to the Representatives the Lead Managers his opinion, dated the Closing Date and addressed to the Lead Managers in substantially the form attached hereto as Exhibit A.
(c) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company, will have furnished to the Underwriters its opinion, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, in substantially the form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.attached hereto as Exhibit B.
(cd) The Representatives Underwriters shall have received from Axxxxx & Bird Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Lead Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chairman of the Board or and the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, or such other officers of the Company as the Underwriters may agree, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change change, or any development involving a prospective material adverse change, in or affecting the general financial condition (financial or other), earnings, results of operations or business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) At the date hereof and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Underwriters letters, dated respectively as of the date hereof and as of the Closing Date, in form and substance satisfactory to the Underwriters of the type described in AICPA Statement on Auditing Standard No. 72, as amended, with respect to the financial statements and certain financial information of the Company contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the general financial condition or results of operations or business of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesLead Managers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable On or prior to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final ProspectusSecurities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(j) On or prior to the Closing Date, an application for the listing of the Securities shall have been submitted to the NYSE.
(k) Prior to the Closing Date, the Company shall have furnished to the Representatives Lead Managers such further information, certificates and documents as the Representatives Lead Managers may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Lead Managers and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the RepresentativesLead Managers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel for the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Ecolab Inc), Underwriting Agreement (Ecolab Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Act shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Winston & Fxxx Xxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the RepresentativesRepresentatives their opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form attached as Annex A hereto.
(c) The Representatives shall have received from Axxxxx Weil, Gotshal & Bird Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or Chief Executive Officer, the President or any Vice President the principal executive officer and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company contained in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iii) there shall not have occurred any downgrading, nor shall any notice have been given to the Company of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company by any “nationally recognized statistical rating organization” as the term is defined in Section 3(a)(62) under the Exchange Act.
(e) At The Company shall have requested and caused Ernst & Young LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and covering matters that are ordinarily covered by the Public Company Accounting Oversight Board and containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; providedProspectus (together with any supplement thereto), however, provided that the letter furnished delivered on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the CompanySecurities by either Standard & Poor’s debt securities by Mxxxx’x Financial Services LLC or Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporationany of their respective successors or any notice given to the Company of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Weil, Gotshal & Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Lear Corp), Underwriting Agreement (Lear Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time of Sale and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives Representatives:
(i) an opinion of Wxxx, Gotshal & Mxxxxx LLP, counsel to the opinionCompany, dated the Closing DateDate and addressed to the Representatives, in form and substance reasonably acceptable satisfactory to the Representatives; and
(ii) a letter of Wxxx, and the letterGotshal & Mxxxxx LLP, dated the Closing DateDate and addressed to the Representatives, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable satisfactory to the Representatives.
(c) The Representatives shall have received from Axxxxx Dxxxx Xxxx & Bird Wxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in effect on the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and or prior to the Closing Date, Ernst & Young the Company shall have executed and delivered to the Underwriters an officers’ certificate pursuant to Section 3.01 of the Indenture, in form and substance reasonably satisfactory to the Underwriters, and the Indenture and such officers’ certificate shall be in full force and effect.
(f) [Reserved]
(g) The Company shall have requested and caused PricewaterhouseCoopers LLP shall to have furnished to the Representatives a letter or Representatives, at the Time of Sale and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time of Sale and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time of Sale or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent to the Execution TimeTime of Sale, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Weil, Gotshal & Mxxxxx LLP, counsel for the Company, at 700 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Estee Lauder Companies Inc), Underwriting Agreement (Estee Lauder Companies Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinionrequested and caused Xxxxxx, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx Xxxxxxxxxx & Fxxx Xxxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Schedule V hereto.
(c) The Representatives shall have received from Axxxxx Skadden, Arps, Slate, Xxxxxxx & Bird Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or Board, the Chief Executive Officer, the President or any Senior Vice President and by the principal financial or accounting officer or Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to stating in effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Registration Statement, Disclosure Package the Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to [—], 20[ ], nothing came to their attention which caused them to believe that, with respect to the period subsequent to [—], 20[ ], there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt or short-term borrowings of the Company and its subsidiaries or the capital stock of the Company or decreases in current assets or the shareholders’ equity of the Company, as compared with the amounts shown on the [—], 20[ ] consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; provided, howeveror for the period from [—], that 20[ ] to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, income before income taxes or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter furnished on and dated shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Closing Date shall use a “cut-off” date no more than three business days prior Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Closing DateRegistration Statement, including the information set forth under the captions “Ratio of Earnings to Fixed Charges” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, and the information included or incorporated by reference in Items 1, 1A, 6, 7 and 7A of the Company’s Annual Report on Form 10-K and the information included in “Management’s Discussion and Analysis of Financial Conditions and Results of Operations” included in the Company’s Quarterly Report on Form 10-Q, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, change in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of PG&E Corporation’s or the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Four Times Square, New York, New York, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (PACIFIC GAS & ELECTRIC Co), Underwriting Agreement (PACIFIC GAS & ELECTRIC Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Trust contained herein as of the Execution Time date hereof and the each Closing Date, to the accuracy of the any material statements of the Company made in any certificates certificates, opinions, affidavits, written statements or letters furnished to the Representatives or to Xxxxxxx Xxxxxxx & Xxxxxxxx ("Underwriters' Counsel") pursuant to the provisions hereofthis Section 7, to the performance by the Company and the Trust of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Prospectus shall have been filed with the Commission within pursuant to Rule 424 not later than 5:00 p.m., New York City time, on the applicable second business day following the date of this Agreement or such later date and time periods prescribed for such filings as shall be consented to in writing by Rule 433; and no stop the Representatives.
(b) No order suspending the effectiveness of the Registration Statement Statement, as amended from time to time, or suspending the qualification of the Declaration, the Guarantee Agreement or the Indenture, shall have been issued be in effect and no proceedings for that such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been instituted or threatened.
(b) The Company shall have furnished complied with to the Representatives the opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, reasonable satisfaction of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have received from Axxxxx & Bird LLPbeen any change or decrease specified in the letter or letters referred to in paragraphs (h) or (i) of this Section 7 which, counsel for in the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale judgment of the SecuritiesRepresentatives, makes it impracticable or inadvisable to proceed with the Indenture, offering and delivery of the Preferred Securities as contemplated by the Registration Statement, the Disclosure Package, Statement and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such mattersProspectus.
(d) The Company shall have furnished to the Representatives the opinion of a certificate of the Company, signed by the Chairman of the Board Deputy General Counsel or the President or any Vice President and the principal financial or accounting officer or Treasurer of Chief Legal Officer for the Company, dated the applicable Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements been duly organized and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued is validly existing and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with good standing under the laws of any country, other than the United States, in whose currency Securities are denominated, the validity jurisdiction of the Securities, the Prospectus its incorporation with all requisite corporate power and other related matters authority to own and operate its properties and to conduct its business as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth described in the Final Prospectus.
(jii) Prior to The statements made in the Closing DateFinal Prospectus under the captions "Description of Debentures", "The Trust", "Description of Preferred Securities", "Description of Guarantee" and "Relationship Among the Preferred Securities, the Company shall have furnished Debentures and the Guarantee", insofar as such statements purport to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any constitute summaries of the conditions specified in this Section 5 shall not have been fulfilled terms of the Preferred Securities, the Debentures and the Guarantee, constitute accurate summaries of the terms of the Preferred Securities, the Debentures and the Guarantee in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writingrespects.
Appears in 2 contracts
Samples: Underwriting Agreement (Lehman Brothers Holdings Capital Trust V), Underwriting Agreement (Lehman Brothers Holdings Capital Trust Iii)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representative shall have furnished to the Representatives the opinionreceived such opinions, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the RepresentativesRepresentative, of Skadden, Arps, Slate, Mxxxxxx (a) Xxxxx Xxxx & Fxxx Xxxxxxxx LLP, outside counsel for the Company, or such other counsel reasonably acceptable to the Representativeseffect as set forth on Exhibit A hereto, and (b) of Xxxxxx Xxxxxx Morandi, Esq., General Counsel of the Company, to the effect set forth on Exhibit B hereto.
(c) The Representatives Representative shall have received from Axxxxx Xxxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)) , there has been no material adverse change in effect on the condition (financial or other), earningsbusiness, business properties or properties results of operation of the Company and its subsidiariesthe Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(e) At The Representative shall have received from PricewaterhouseCoopers LLP, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or “comfort” letters (which may refer to letters previously delivered to one or more of the RepresentativesRepresentative), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations thereunder adopted by the Commission and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference PCAOB substantially in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as form of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letterExhibit D hereto.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) under the Exchange Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Representative and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(i) The Company shall have applied to list the Securities on the New York Stock Exchange, and satisfactory evidence of such action shall have been provided to the Representatives.
(j) The Representatives shall have received from counsel counsel, satisfactory to the Representatives Representatives, such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ik) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jl) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement has become effective prior to the Execution Time; if filing of the Canadian Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, Prospectus shall have been filed in with the manner OSC under the Shelf Procedures, (ii) the U.S. Final Prospectus shall have been filed with the SEC pursuant to General Instruction II.L. of Form F-10 under the Securities Act and within the time period required by Rule 424(b); (iii) the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to in accordance with Rule 433(d) under the Act ), shall have been filed with the Commission SEC, in each case, within the applicable time periods period in the manner prescribed for such filings by Rule 433filing and in accordance with Section 5(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings cease trader order affecting the Securities and no other order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatenedthreatened by the SEC or the OSC.
(b) The Company shall have requested and caused Xxxxxx Xxxxxx LLP, U.S. counsel for the Company, to have furnished to the Representatives the their opinion, dated the Closing DateDate and addressed to the Underwriters, in the form set forth in Exhibit A.
(c) The Company shall have requested and substance reasonably acceptable to the Representativescaused Xxxxx, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx Xxxxxx & Fxxx Harcourt LLP, Canadian counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives.Representatives their opinion, dated the Closing Date and addressed to the Underwriters, in the form set forth in Exhibit B.
(cd) The Representatives shall have received from Axxxxx Shearman & Bird Sterling LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, Package and the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any a Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Canadian Base Prospectus, the U.S. Base Prospectus, the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package, the Final Prospectus, any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop the receipt obtained from the OSC in respect of the Canadian Base Prospectus remains in effect and no order having the effect of ceasing or suspending the effectiveness distribution of or the trading in the securities of the Company nor any notice objecting the use of the Canadian Base Prospectus or the Registration Statement has been issued by the OSC or the SEC, respectively, and no proceedings for that purpose shall have been instituted orissued, or to the Company’s knowledge, threatened, by the OSC or the SEC, respectively, and any request for additional information by the OSC or the SEC have been complied with; and
(iii) Since since the date of the most recent audited financial statements included or incorporated by reference in the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Final Prospectus Registration Statement (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth or incorporated in or contemplated in the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Registration Statement.
(ef) At The receipt obtained from the OSC in respect of the Canadian Base Prospectus shall remain in effect and no order having the effect of ceasing or suspending the distribution of or the trading in the securities of the Company nor any notice objecting the use of the Canadian Base Prospectus or the Registration Statement shall have been issued by the OSC or the SEC, respectively, and no proceedings for that purpose shall have been issued, or to the Company’s knowledge, threatened, by the OSC or the SEC, respectively, and any request for additional information by the OSC or the SEC shall have been complied with.
(g) The Company shall have requested and caused Deloitte LLP, the independent chartered accountants of the Company to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing DateDate (with a “cut-off” date no more than two business days prior to the date of such letter), in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning together with signed or reproduced copies of such letter for each of the Act Underwriters containing statements and information of the applicable rules and regulations thereunder and covering matters that are type ordinarily covered by 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, Disclosure Package the Canadian Final Prospectus, the U.S. Final Prospectus and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letterDisclosure Package.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Canadian Final Prospectus (exclusive of any amendment or supplement thereto), and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, change in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Canadian Final Prospectus (exclusive of any amendment or supplement thereto), the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) and the Disclosure Package the effect of which in any case referred to in clause (i) or (ii) abovewhich, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Canadian Final Prospectus (exclusive of any amendment or supplement thereto), the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) and the Disclosure Package.
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization,” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling LLP, counsel for the Underwriters, at 000 Xxx Xxxxxx, Xxxxxxxx Court West, Suite 4405, Xxxxxxx, Xxxxxxx, X0X 0X0, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Magna International Inc), Underwriting Agreement (Magna International Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Subsidiary Guarantors contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company and the Subsidiary Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Subsidiary Guarantors of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Act shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Winston & Fxxx Xxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the RepresentativesRepresentative their opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form attached as Annex A hereto.
(c) The Representatives Representative shall have received from Axxxxx Weil, Gotshal & Bird Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives Representative a certificate of the CompanyCompany and any Subsidiary Guarantors, signed by the Chairman of the Board or Chief Executive Officer, the President or any Vice President the principal executive officer and the principal financial or accounting officer or Treasurer of the CompanyCompany and such Subsidiary Guarantor, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company and each Subsidiary Guarantor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has and each Subsidiary Guarantor have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iii) there shall not have occurred any downgrading, nor shall any notice have been given to the Company of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company by any “nationally recognized statistical rating organization” as the term is defined for purposes of Section 3(a)(26) under the Exchange Act.
(e) At The Company shall have requested and caused Ernst & Young LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the RepresentativesRepresentative), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and covering matters that are ordinarily covered by the Public Company Accounting Oversight Board and containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; providedProspectus (together with any supplement thereto), however, provided that the letter furnished delivered on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities Notes by Mxxxx’x Investors Service, Inc. or either Standard & Poor’s CorporationFinancial Services LLC, a subsidiary of The XxXxxx-Xxxx Companies, Inc. or Xxxxx’x Investors Services, Inc. or any of their respective successors or any notice given to the Company of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company and each Subsidiary Guarantor shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request. If any of the conditions specified in this Section 5 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Representative and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Weil, Gotshal & Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Lear Corp), Underwriting Agreement (Lear Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Cactus Parties contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company Cactus Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxx L.L.P., counsel for the Cactus Parties, and King & Wood Mallesons, special Chinese counsel to the Cactus Parties, to have furnished to the Representatives the opiniontheir opinions, dated the Closing Date, in form applicable settlement date and substance reasonably acceptable addressed to the Representatives, substantially in the forms attached as Exhibit C and the letterExhibit D hereto, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representativesrespectively.
(c) The Representatives shall have received from Axxxxx & Bird LLPXxxxx Xxxxx L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Dateapplicable settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and Chief Executive Officer and the principal financial or accounting officer or Treasurer Chief Financial Officer of the Company, dated the Closing Dateapplicable settlement date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any amendment or supplement or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Dateapplicable settlement date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as of the Execution Time and as of the Closing Dateany dated applicable settlement date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder Representatives and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements of the Cactus Parties and certain other financial information contained or incorporated by reference included in the Registration Statement, Disclosure Package Preliminary Prospectus and the Final Prospectus; provided, however, that the letter furnished on Prospectus and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letterother customary matters.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company Cactus Entities taken as a whole, in each case, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and its subsidiaries the Prospectus (exclusive of any supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. .
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each person listed in Schedule IV addressed to the Representatives.
(k) The Reorganization Transactions shall have been consummated other than any such Reorganization Transactions contemplated to be consummated contemporaneously with the Closing.
(l) At the Execution Time and at the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request, including a certificate of the Chief Financial Officer of the Company substantially in the form attached hereto as Exhibit E. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.the
Appears in 2 contracts
Samples: Underwriting Agreement (Cactus, Inc.), Underwriting Agreement (Cactus, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, 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, of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Xxxxxxx Xxxxxxx & Fxxx Xxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives, substantially in the forms set forth in Exhibits A-1 and A-2 hereto.
(c) The Company shall have requested and caused Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC, special Tennessee counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit B hereto.
(d) [Reserved].
(e) The Company shall have requested and caused Xxxxxx X. Xxxxxx, the General Counsel of the Company, to have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit C hereto.
(f) The Representatives shall have received from Axxxxx & Bird Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the sale of the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(dg) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President Chief Executive Officer and the principal financial or accounting officer or Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement that are not qualified by materiality are true and correct in all material respects respects, and that the representations and warranties of the Company in this Agreement that are qualified by materiality are true and correct, in each case, on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement theretothereto that has not been made part of the Disclosure Package), there has been no material adverse change in effect on the condition (business, properties, management, financial position, shareholders’ equity, results of operations or other), earnings, business or properties prospects of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businesstaken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement theretothereto that has not been made part of the Disclosure Package).
(eh) At the Execution Time [Reserved].
(i) The Company shall have requested and the Closing Date, caused Ernst & Young LLP shall to have furnished to the Representatives at the Execution Time a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and at the Closing Date, a letter, dated as of the Closing Date, each in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants’ “comfort letters” to underwriters with respect to the audited and unaudited financial statements and certain financial information contained or incorporated by reference in the Preliminary Prospectus, the Prospectus and the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any supplement theretothereto that has not been made part of the Disclosure Package), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ei) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (business, properties, management, financial position, shareholders’ equity or other), earnings, business or properties results of operations of the Company and its subsidiaries taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto that has not been made part of the Disclosure Package) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement theretothereto that has not been made part of the Disclosure Package).
(gk) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(hl) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters[Reserved].
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jm) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Dollar General Corp), Underwriting Agreement (Dollar General Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the General Counsel to the Company to have furnished to the Representatives the his opinion, dated the Closing DateDate and addressed to the Representatives, in substantially the form attached hereto as Annex A.
(c) The Company shall have requested and caused:
(i) Weil, Gotshal & Xxxxxx LLP to have furnished to the Representatives their opinion and letter, each dated the Closing Date and addressed to the Representatives, in substantially the forms attached hereto as Annexes B-1 and B-2, respectively; and
(ii) Xxxxx & Xxxxxxx and Stamford Law Corporation to have furnished to the Representatives their opinions, each dated the Closing Date and addressed to the Representatives, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable satisfactory to the Representatives.
(cd) The Representatives shall have received from Axxxxx Xxxxxx Xxxxxxxx Xxxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No the Company is a well-known seasoned issuer within the meaning of Rule 405 under the Act and meets the requirements for use of Form S-3 under the Act to register primary offerings of securities;
(iii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiiiv) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) On the date hereof, the Representatives shall have received from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(g) On the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, independent public or certified public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) or (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company promptly in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP , counsel for the Underwriters, at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Franklin Resources Inc), Underwriting Agreement (Franklin Resources Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing DateDate (including, for the avoidance of doubt, compliance with covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement has become effective prior to the Execution Time; if filing of the Canadian Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, Prospectus shall have been filed in with the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) Reviewing Authority under the Act Shelf Procedures and (ii) the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.K. of Form F-9 under the Act, in each case, within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission or the Reviewing Authority;
(b) The Company shall have requested and caused Mayer, Brown, Xxxx & Maw LLP, U.S. counsel for the Company, to have furnished to the Representatives the Representative their opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the RepresentativesRepresentative, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx effect set forth in Annex I hereto;
(c) XxXxxxxx Xxxxxxxx LLP, Canadian counsel for the Company, or such other counsel reasonably acceptable shall have furnished to the Representatives.Representative their opinion, dated the Closing Date and addressed to the Representative, with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Annex II;
(cd) The Representatives Representative shall have received from Axxxxx Shearman & Bird Sterling LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representative, with respect to the issuance and sale of the Securities, the IndentureIndenture (if applicable), the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably require and request for the purpose of enabling them to pass upon such matters.;
(de) The Representative shall have received from United States in-house counsel to the Company, an opinion to the effect set forth in Annex III;
(f) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and Chief Executive Officer and the principal financial or accounting officer or Treasurer Executive Vice-President Corporate Development and Chief Financial Officer of the Company, dated the Closing Date, to the effect that that:
(i) the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, Canadian Final Prospectus and the U.S. Final Prospectus, any supplement or amendments supplements to the Canadian Final Prospectus, as well as each electronic road show used in connection with Prospectus and the offering of the Securities, U.S. Final Prospectus and this Agreement and that:Agreement;
(iii) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(iiiii) No no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any prospectus relating to the Securities has been issued and no proceedings for that purpose have been instituted orbeen, to the Company’s 's knowledge, threatened; andinstituted or threatened by the Reviewing Authority or the Commission;
(iiiiv) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Canadian Final Prospectus, as amended or supplemented prior to the Execution Time, and the U.S. Final Prospectus (exclusive of any supplement thereto)Prospectus, as amended or supplemented prior to the Execution Time, there has been no material adverse change in effect on the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Canadian Final Prospectus, as amended or supplemented prior to the Execution Time, and the U.S. Final Prospectus (exclusive of any supplement thereto).Prospectus, as amended or supplemented prior to the Execution Time; and
(ev) the Company is in compliance with the covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness;
(g) At the Execution Time and the Closing Date, Ernst & Young LLP the Representative shall have furnished to the Representatives received from KPMG LLP a letter or letters (which may refer to letters previously delivered to one dated such date or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Datedates, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are an independent registered public accounting firm within the meaning together with signed or reproduced copies of such letter or letters for each of the Act other Underwriters containing statements and information of the applicable rules and regulations thereunder and covering matters that are type ordinarily covered by “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, Disclosure Package the U.S. Final Prospectus and the Canadian Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.;
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)as amended or supplemented prior to the Execution Time, the Disclosure Package and the Canadian Final Prospectus (exclusive of any supplement thereto)as amended or supplemented prior to the Execution Time and the U.S. Final Prospectus as amended or supplemented prior to the Execution Time, there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (eg) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Canadian Final Prospectus, as amended or supplemented prior to the Execution Time and the U.S. Final Prospectus, as amended or supplemented prior to the Execution Time, the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Canadian Final Prospectus (exclusive of any supplement thereto).and the U.S. Final Prospectus;
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s 's debt securities by Mxxxx’x Investors Service, Inc. any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporation.any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change;
(hj) The Representatives If the Registration Statement or an offering of Securities has been filed with the NASD for review, the NASD shall not have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, raised any objection with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity fairness and reasonableness of the Securities, the Prospectus underwriting terms and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.arrangements;
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jk) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Representative and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of the Company, Attention: Corporate Finance Law Department, 000 - 0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx, X0X 0X0 on the Closing Date or such other place as the Representative shall so instruct.
Appears in 2 contracts
Samples: Underwriting Agreement (Transcanada Pipelines LTD), Underwriting Agreement (Transcanada Pipelines LTD)
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) heretohereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx X. Xxxxxx, Associate General Counsel – Corporate, Tax & Treasury and Assistant Secretary of the Company, to have furnished to the Representatives the his opinion, dated the Closing Date and addressed to the Representatives in substantially the form attached hereto as Exhibit A.
(c) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company, shall have furnished to the Underwriters its opinion and negative assurance letter, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, in substantially the form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.attached hereto as Exhibit B.
(cd) The Representatives shall have received from Axxxxx & Bird Xxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and Chief Executive Officer and the principal financial or accounting officer or Treasurer of the Company, or such other officers of the Company as the Representatives may agree, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order or similar order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change change, or any development involving a prospective material adverse change, in or affecting the general financial condition (financial or other), earnings, results of operations or business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) At the date hereof and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Underwriters letters, dated respectively as of the date hereof and as of the Closing Date, in form and substance satisfactory to the Underwriters of the type described in AICPA Statement on Auditing Standard No. 72, as amended, with respect to the financial statements and certain financial information of the Company contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the general financial condition or results of operations or business of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxxx LLP, counsel for the Underwriters, at 00 Xxxxx Xxxxxx Xxxxx, Chicago, Illinois 60606, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Ecolab Inc.), Underwriting Agreement (Ecolab Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Act shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Winston & Fxxx Xxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the RepresentativesRepresentatives their opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form attached as Annex A hereto.
(c) The Representatives shall have received from Axxxxx Weil, Gotshal & Bird Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or Chief Executive Officer, the President or any Vice President the principal executive officer and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company contained in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iii) there shall not have occurred any downgrading, nor shall any notice have been given to the Company of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company by any “nationally recognized statistical rating organization” as the term is defined in Section 3(a)(62) under the Exchange Act.
(e) At The Company shall have requested and caused Ernst & Young LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and covering matters that are ordinarily covered by the Public Company Accounting Oversight Board and containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; providedProspectus (together with any supplement thereto), however, provided that the letter furnished delivered on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities Securities by Mxxxx’x Investors Service, Inc. or either Standard & Poor’s CorporationFinancial Services LLC or Xxxxx’x Investors Services, Inc. or any of their respective successors or any notice given to the Company of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the office of Weil, Gotshal & Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Lear Corp), Underwriting Agreement (Lear Corp)
Conditions to the Obligations of the Underwriters. The obligations of ------------------------------------------------- the several Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Company, Thermedics and Thermo Electron contained herein as of the Execution Time and the applicable Closing Date, to the accuracy of the statements of the Company Company, Thermedics and Thermo Electron made in any certificates pursuant to the provisions hereof, to the performance by the Company Company, Thermedics and Thermo Electron of its their obligations hereunder and to the following additional conditions:
(a) The If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than 12:00 Noon, Eastern time, on ______ __, 1997; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been will be filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company No Underwriter shall have furnished been advised by the Company, Thermedics or Thermo Electron or shall have discovered and disclosed to the Representatives Company that the Registration Statement, or the Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in your reasonable opinion, dated or in the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, reasonable opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the CompanyUnderwriters, is material, or such other omits to state a fact which, in your reasonable opinion, or in the reasonable opinion of counsel reasonably acceptable to the RepresentativesUnderwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) The At the Execution Time and at the applicable Closing Date, the Company and Thermo Electron shall have furnished to you the opinions (addressed to the Underwriters) of Xxxx X. Xxxxxxxxx, Esq., General Counsel to the Company, Thermedics and Thermo Electron, dated respectively as of the Execution Time and the applicable Closing Date, in the form previously provided to you.
(d) At the Execution Time and at the applicable Closing Date, the Representatives shall have received from Axxxxx Xxxxx, Xxxxxxx & Bird Xxxxxxxxx, LLP, counsel for to the Underwriters, such opinion or opinions, dated as of the Execution Time and the applicable Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The At the applicable Closing Date, the Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer certificates of the Company, dated as of the applicable Closing DateDate and signed by the President or a Vice President and by the Treasurer or Secretary of the Company given in their capacities as such, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on at and as of the applicable Closing Date Date, with the same effect as if made on the applicable Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s their knowledge, threatened;
(iii) all filings required by Rule 424 and Rule 430A have been made;
(iv) the signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments or supplements thereto and such documents contain all statements and information required to be included therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and
(v) since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Prospectus which has not been so set forth.
(f) At the applicable Closing Date, each of Thermedics and Thermo Electron shall have furnished to the Representatives certificates of Thermedics and Thermo Electron, dated respectively as of the applicable Closing Date and signed by the President or a Vice President and the Treasurer or Secretary thereof given in their capacities as such, to the effect that:
(i) the representations and warranties of Thermedics or ThermoTrex (as applicable) in this Agreement are true and correct at and as of the applicable Closing Date with the same effect as if made on the applicable Closing Date, and each of Thermo Electron or Thermedics (as applicable) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(ii) the signers of said certificate have carefully examined the Registration Statement and the Prospectus, and any amendments or supplements thereto, and such documents contain all statements and information required to be included therein and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and
(iii) Since since the effective date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Registration Statement, there has been occurred no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as event required to be set forth in an amendment or contemplated in supplement to the Disclosure Package and Registration Statement or the Final Prospectus (exclusive of any supplement thereto)which has not been so set forth.
(eg) At the Execution Time and at the applicable Closing Date, Ernst & Young LLP each accounting firm whose report appears in the Prospectus shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as of the Execution Time and as of the applicable Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the applicable published rules and regulations thereunder and covering stating, as of the date of such letter (or, with respect to matters that are ordinarily covered by “comfort letters” involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to underwriters the date of each such letter), the conclusions and findings of each such firm with respect to the financial statements information and certain financial information contained or incorporated other matters covered by reference in its letter delivered to you concurrently with the Registration Statementexecution of this Agreement, Disclosure Package and the Final Prospectus; provided, however, that the with respect to each letter furnished delivered on and dated as of the a Closing Date shall use a “cut-off” date no more than three business days confirming the conclusions and findings set forth in such prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any supplement thereto), neither the Company nor any of the Subsidiaries of the Company shall have sustained loss by fire, flood, accident or other calamity, or shall have become a party to or the subject of any litigation, which is material to the Company and its Subsidiaries taken as a whole, nor shall there shall not have been (i) any a material adverse change in the capital stock (other than issuances of capital stock upon exercise of stock optionsgeneral affairs, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included operations, business, prospects, key personnel, capitalization, financial condition or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties worth of the Company and its subsidiaries Subsidiaries taken as a whole, whether or not arising in the effect ordinary course of business, which in any case referred to in clause (i) loss, litigation or (ii) above, ischange, in the judgment of the Representativesyour judgment, so material and adverse as to make shall render it impractical or inadvisable to proceed with the offering or the payment for and delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the applicable Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Securities to be purchased on such Closing Date by the Underwriters shall be approved for listing on the American Stock Exchange, subject only to official notice of issuance.
(k) At the Execution Time, the Company shall have furnished or caused to be furnished to the Representatives such lock-up agreements as are requested by the Representatives. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the applicable Closing Date by the Representatives. Any such cancellation shall be without liability of the Underwriters to the Company, Thermedics or Thermo Electron. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile telegraph confirmed in writing.
Appears in 2 contracts
Samples: Standby Underwriting Agreement (Thermedics Detection Inc), Standby Underwriting Agreement (Thermedics Detection Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder in all material respects of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) (i) The Company and the Selling Stockholder shall have furnished requested and caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Selling Stockholder, to furnish to the Representatives the opinionan opinion letter and an advice letter, each dated the Closing Date, Date and in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final ProspectusExhibit B hereto.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (First Data Corp), Underwriting Agreement (First Data Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of caused Skadden, Arps, Slate, Mxxxxxx Xxxxxxx & Fxxx Xxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives., in substantially the forms attached hereto as Exhibit A.
(c) The Representatives shall have received from Axxxxx Xxxxxx X. Xxxxxxxx, Deputy General Counsel and Managing Director, his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Exhibit B.
(d) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in effect on the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are type ordinarily covered by included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or with respect to the Company incorporated by reference in the Registration Statement, Disclosure Package Statement and the Final Prospectus; provided, however, provided that the letter furnished delivered on and dated as of the Closing Date shall use a “cut-offoff date” not earlier than the date no more than three business days prior to the Closing Datehereof. References to the Final Prospectus in this paragraph (ef) include any supplement thereto at the date of the such letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Time, there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a reasonably foreseeable prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (BlackRock Inc.), Underwriting Agreement (BlackRock Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement has become effective prior to the Execution Time; if filing of the Canadian Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, Prospectus shall have been filed in with the manner OSC under the Shelf Procedures, (ii) the U.S. Final Prospectus shall have been filed with the SEC pursuant to General Instruction II.L. of Form F-10 under the Securities Act and within the time period required by Rule 424(b); (iii) the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to in accordance with Rule 433(d) under the Act ), shall have been filed with the Commission SEC, in each case, within the applicable time periods period in the manner prescribed for such filings by Rule 433filing and in accordance with Section 5(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings cease trader order affecting the Securities and no other order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatenedthreatened by the SEC or the OSC.
(b) The Company shall have requested and caused Sidley Austin LLP, U.S. counsel for the Company, to have furnished to the Representatives the their opinion, dated the Closing DateDate and addressed to the Underwriters, in the form set forth in Exhibit A.
(c) The Company shall have requested and substance reasonably acceptable to the Representativescaused Osler, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx Xxxxxx & Fxxx Harcourt LLP, Canadian counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives.Representatives their opinion, dated the Closing Date and addressed to the Underwriters, in the form set forth in Exhibit B.
(cd) The Representatives shall have received from Axxxxx Shearman & Bird Sterling LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, Package and the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any a Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Canadian Base Prospectus, the U.S. Base Prospectus, the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package, the Final Prospectus, any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop the receipt obtained from the OSC in respect of the Canadian Base Prospectus remains in effect and no order having the effect of ceasing or suspending the effectiveness distribution of or the trading in the securities of the Company nor any notice objecting the use of the Canadian Base Prospectus or the Registration Statement has been issued by the OSC or the SEC, respectively, and no proceedings for that purpose shall have been instituted orissued, or to the Company’s knowledge, threatened, by the OSC or the SEC, respectively, and any request for additional information by the OSC or the SEC have been complied with; and
(iii) Since since the date of the most recent audited financial statements included or incorporated by reference in the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Final Prospectus Registration Statement (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth or incorporated in or contemplated in the Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Registration Statement.
(ef) At The receipt obtained from the OSC in respect of the Canadian Base Prospectus shall remain in effect and no order having the effect of ceasing or suspending the distribution of or the trading in the securities of the Company nor any notice objecting the use of the Canadian Base Prospectus or the Registration Statement shall have been issued by the OSC or the SEC, respectively, and no proceedings for that purpose shall have been issued, or to the Company’s knowledge, threatened, by the OSC or the SEC, respectively, and any request for additional information by the OSC or the SEC shall have been complied with.
(g) The Company shall have requested and caused Deloitte LLP, the independent chartered accountants of the Company to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing DateDate (with a “cut-off” date no more than three days prior to the date of such letter), in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning together with signed or reproduced copies of such letter for each of the Act Underwriters containing statements and information of the applicable rules and regulations thereunder and covering matters that are type ordinarily covered by 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, Disclosure Package the Canadian Final Prospectus, the U.S. Final Prospectus and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letterDisclosure Package.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Canadian Final Prospectus (exclusive of any amendment or supplement thereto), and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, change in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Canadian Final Prospectus (exclusive of any amendment or supplement thereto), the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) and the Disclosure Package the effect of which in any case referred to in clause (i) or (ii) abovewhich, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Canadian Final Prospectus (exclusive of any amendment or supplement thereto), the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) and the Disclosure Package.
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization,” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling LLP, counsel for the Underwriters, at Commerce Court West, Suite 4405, Xxxxxxx, Xxxxxxx, X0X 0X0, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Magna International Inc), Underwriting Agreement (Magna International Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Xxxxxxxx & Fxxx Xxxxx LLP, counsel for the Company, or such other and in-house counsel reasonably acceptable of the Company to furnish to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in substantially the forms of Exhibits A and B attached hereto. In rendering such opinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the jurisdiction of incorporation of the Company, the State of New York or the federal laws of the United States, to the extent they deem proper and specify such reliance in such opinions, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References therein to the Final Prospectus shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by and in their capacity as such (x) the Chairman of the Board or the President or any Vice President and (y) the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect, and no development involving a prospective change in which would have a material adverse effect, on the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, Ernst & Young LLP the Company shall have furnished requested and caused Deloitte & Touche LLP to furnish to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as of the Execution Time and as of the Closing Date, in the form and substance satisfactory to the Representatives, attached as Exhibit C hereto confirming that they are an independent registered public accounting firm accountants within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Datethereunder. References therein to the Final Prospectus in this paragraph (e) shall also include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Disclosure Package (exclusive of any amendment thereof), the Disclosure Package or supplement thereto) and the Final Prospectus (exclusive of any supplement thereto), as the case may be, there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as such term is defined by the Commission in Rule 15c3-1(c)(2)(vi)(F) of the Exchange Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Wyndham Worldwide Corp), Underwriting Agreement (Wyndham Worldwide Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have furnished to the Representatives the opinionreceived such opinions, dated the Closing Date, in form Date and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable addressed to the Representatives, of SkaddenXxxxx Xxxx & Xxxxxxxx, Arps, Slate, Mxxxxxx & Fxxx LLP, outside counsel for the Company, or such other counsel reasonably acceptable to the Representativeseffect set forth on Exhibit B hereto, of Xxxxxx Xxxxxx Morandi, Esq., General Counsel of the Company, to the effect set forth on Exhibit C hereto.
(c) The Representatives shall have received from Axxxxx Xxxxxx Xxxxxxxx Xxxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)) , there has been no material adverse change in effect on the condition (financial or other), earningsbusiness, business properties or properties results of operation of the Company and its subsidiariesthe Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At The Representatives shall have received from PricewaterhouseCoopers LLP, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or “comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference Public Company Accounting Oversight Board (United States) (PCAOB) substantially in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as form of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letterExhibit D hereto.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each Section 16 officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the General Counsel to the Company to have furnished to the Representatives the his opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, in substantially the form attached hereto as Annex A.
(c) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP to have furnished to the Representatives their opinion and letter, each dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, of Skaddenin substantially the forms attached hereto as Annexes B-1 and B-2, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representativesrespectively.
(cd) The Representatives shall have received from Axxxxx Xxxxxx Xxxxxxxx Xxxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No the Company is a well-known seasoned issuer within the meaning of Rule 405 under the Act and meets the requirements for use of Form S-3 under the Act to register primary offerings of securities;
(iii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiiiv) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) On the date hereof, the Representatives shall have received from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(g) On the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, independent public or certified public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (f) of this Section 6, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) or (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company promptly in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP , counsel for the Underwriters, at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Franklin Resources Inc), Underwriting Agreement (Franklin Resources Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of any officer of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Manager of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus shall have been issued and no proceedings for that purpose shall any of those purposes have been instituted or threatenedare pending or, to the Company’s knowledge, threatened or contemplated.
(b) The Company Representatives shall have furnished to the Representatives received (i) the opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Manager to the effect set forth in Exhibit B-1 hereto; (ii) the opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company to the effect set forth in Exhibit B-2 hereto; and (iii) the opinion, dated as of the Closing Date, of Xxxxxxx LLP, special Maryland counsel for the Company to the effect set forth in Exhibit B-3 hereto, each in form and substance reasonably acceptable satisfactory to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the CompanyUnderwriters, together with signed or reproduced copies of such letters for each of the other counsel reasonably acceptable to the RepresentativesUnderwriters.
(c) The Representatives shall have received from Axxxxx & Bird Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering their opinion as aforesaid, Xxxx Xxxxxxxx LLP may rely upon an opinion, dated as of the Closing Date, of Xxxxxxx LLP, as to matters governed by Maryland law, or such other counsel satisfactory to the Representatives.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman chief executive officer of the Board or the President or any Vice President Company and the principal financial or accounting officer or Treasurer of the Company, dated on behalf of the Closing Date, Company to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate signed by the chief executive officer, president or a senior managing director of the Manager and the principal financial officer (or persons having equivalent functions) of the Manager, on behalf of the Manager to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that (i) the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and (ii) the Manager has complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date.
(f) At the Execution Time and at the Closing Date, the Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(g) At the Execution Time and at the Closing Date, the Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Company and Blackstone and its affiliates included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated At the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for a certificate signed by the Company, satisfactory Principal Accounting Officer of the Company certifying as to the Representatives preparation, completeness and dated accuracy of certain financial and statistical data relating to the Closing DateCompany included or incorporated by reference in the Registration Statement, confirming their opinion as to United States tax matters set forth in the Disclosure Package or the Final Prospectus.
(j) At the Closing Date, the Representatives shall have received a certificate signed by the Principal Accounting Officer of the Manager certifying as to the preparation, completeness and accuracy of certain financial and statistical data relating to Blackstone included or incorporated by reference in the Registration Statement, the Disclosure Package or the Final Prospectus.
(k) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(l) The FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(m) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(n) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter or letters, substantially in the form of Exhibit A-1 and A-2 hereto, signed by each of the parties identified on Schedule IV hereto (the “Lock-Up Agreements”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions opinions, letters and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Blackstone Mortgage Trust, Inc.), Underwriting Agreement (Blackstone Mortgage Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in the form and substance reasonably acceptable to the Representativesas set forth in Exhibit A-1 hereto, and the letter, dated the Closing Date, in the form and substance reasonably acceptable to the Representativesas set forth in Exhibit A-2 hereto, of Skadden, Arps, Slate, Mxxxxxx Xxxxxxx & Fxxx Xxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx Xxxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Executive or Senior Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the respective applicable published rules and regulations thereunder and covering stating in effect that:
(i) In their opinion the audited financial statements and financial statement schedules, if any, included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations;
(ii) On the basis of a reading of the latest unaudited condensed consolidated financial statements made available by the Company and its subsidiaries; carrying out certain procedures specified by the Public Company Accounting Oversight Board (United States) for a review of interim financial information as described in AU Section 722, Interim Financial Statements (but not an audit in accordance with generally accepted auditing standards) which would not necessarily reveal matters that are ordinarily covered by “comfort letters” to underwriters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the shareowners and the board of directors of the Company through a specified date no more than five business days prior to the date of such letter; and inquiries through a specified date no more than five business days prior to the date of such letter of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements in or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, nothing came to their attention which caused them to believe that:
(1) the amounts included in the unaudited “Income Statement Information”, if any, included in the Registration Statement, the Preliminary Prospectus and the Final Prospectus do not agree with the amounts set forth in the unaudited condensed consolidated financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; and the amounts in the “Selected Financial Data” included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus do not agree with the corresponding amounts in the unaudited or audited financial statements from which such amounts were derived;
(2) any unaudited condensed consolidated financial statements included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus do not comply in form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q or, where applicable, Form 8-K under the Exchange Act; and said unaudited condensed consolidated financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; or
(3) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, there were any changes, at the date of the latest consolidated financial statements (if any) available prior to the date of the letter, in the capital stock of the Company (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus), increases in the long-term debt or decreases in the consolidated net current assets or the shareowners’ equity of the Company as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from the date of the most recent financial statements included or incorporated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus to the date of the latest consolidated financial statements (if any) available prior to the date of the letter there were any decreases, as compared with the corresponding period in the preceding year, in net operating revenues or in the total or per share amounts of income before extraordinary items or of net income of the Company and its subsidiaries, except in all instances for changes or decreases that the Registration Statement, the Preliminary Prospectus and the Final Prospectus discloses have occurred or may occur or as set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(iii) On the basis of performing certain other procedures, as determined and specified by the Underwriters, relating to certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information contained derived from the general accounting records of and subject to the internal controls of the accounting systems of the Company and its subsidiaries) included or incorporated by reference in the Registration Statement, Disclosure Package the Preliminary Prospectus and the Final Prospectus; provided, however, Prospectus that such information agrees with the letter furnished on and dated as accounting records of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing DateCompany and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) The Representatives shall have received from counsel counsel, satisfactory to the Representatives Representatives, such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ij) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their its counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx caused Xxxxxxx Procter LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdictions other than the States of New York and California or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused Xxxx X. Xxxxxx, III, counsel for the Company, to have furnished to the Representatives an opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit B hereto.
(d) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the SecuritiesNotes, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show Electronic Road Show used in connection with the offering of the SecuritiesNotes, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package Preliminary Prospectus and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities Notes as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received ’s, a division of XxXxxx-Xxxx Companies, Inc., or any notice from counsel satisfactory to the Representatives these entities of a pending decrease in any such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersrating.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Nike Inc), Underwriting Agreement (Nike Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Securities Shares shall be subject to the accuracy in all material respects of the representations and warranties of the Company contained herein that are not qualified by materiality and to the accuracy of the representations and warranties on the part of the Company contained herein as of that are qualified by materiality at the Execution Time and date hereof, the Closing Date, and any Option Closing Date, if applicable, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused (i) Sxxxxxx Xxxxxxx & Fxxx Bxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to furnish to the RepresentativesUnderwriters their opinion and negative assurance statement, each dated the Closing Date and, if applicable, any Option Closing Date, and addressed to the Underwriters and substantially in the form of Exhibits B and C hereto; and (ii) Mxxxxxx X. Xxxxxx, Vice President, General Counsel and Secretary of the Company, to furnish to the Underwriters his opinion dated the Closing Date and, if applicable, any Option Closing Date, addressed to the Underwriters and substantially in the form of Exhibit D hereto.
(cb) The Representatives Underwriters shall have received from Axxxxx Shearman & Bird Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and, if applicable, any Option Closing Date, and addressed to the Underwriters, with respect to the issuance and sale of the SecuritiesShares, the IndentureTime of Sale Prospectus, the Prospectus and Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) Statement and other related matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ic) If indicated in Schedule I hereto as being applicable The Company shall have furnished to the offering Underwriters a certificate of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory signed by (x) the Chief Executive Officer or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date and, if applicable, any Option Closing Date, to the Representatives effect that the signers of such certificate have carefully examined the Time of Sale Prospectus, the Prospectus and dated Registration Statement, any amendment or supplement to the Time of Sale Prospectus, the Prospectus and Registration Statement and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement that are not qualified by materiality are true and correct in all material respects, and the representations and warranties of the Company in this Agreement that are qualified by materiality are true and correct, in each case, on and as of the Closing Date or any Option Closing Date, as the case may be, with the same effect as if made on the Closing Date, confirming their opinion or such Option Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to United States tax matters be performed or satisfied hereunder at or prior to the Closing Date, or any Option Closing Date, as the case may be; and
(ii) since the date of the most recent financial statements included in the Time of Sale Prospectus and the Registration Statement (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business, properties or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Prospectus and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement).
(d) At the date hereof and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Underwriters a “comfort” letter, dated as of the date hereof, and a bring-down “comfort” letter (i) on and dated as of the Closing Date and (ii) if applicable, on and dated as of any Option Closing Date, each in form and substance satisfactory to the Managers, confirming that it is an independent registered public accounting firm within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information contained in the Time of Sale Prospectus, the Prospectus and Registration Statement; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three days prior to the date of such letter. All references in this Section 7(d) to the Time of Sale Prospectus, the Prospectus and Registration Statement include any amendment or supplement thereto at the date of the applicable letter.
(e) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and each executive officer and director of the Company and certain affiliates of First Reserve Corporation, listed on Schedule IV hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(f) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or, if applicable, any Option Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(jg) Prior to the Closing Date, or, if applicable, any Option Closing Date, the Company shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(h) The Shares shall have been listed, subject to notice of issuance, on the Nasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Managers.
(i) On the Closing Date, and, if applicable, any Option Closing Date, the Registration Statement shall be effective; no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission. If any of the conditions specified in this Section 5 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement Section 7 shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Managers and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date or, if applicable, any Option Closing Date (solely with respect to the obligations of the Underwriters to purchase Additional Shares on such date) by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 will be delivered at the office of counsel for the Underwriters, at 500 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Chart Industries Inc), Underwriting Agreement (Chart Industries Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of any officer of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Manager of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus shall have been issued and no proceedings for that purpose shall any of those purposes have been instituted or threatenedare pending or, to the Company’s knowledge, threatened or contemplated.
(b) The Company Representatives shall have furnished to the Representatives received (i) the opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Manager to the effect set forth in Exhibit B-1 hereto; (ii) the opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company to the effect set forth in Exhibit B-2 hereto; and (iii) the opinion, dated as of the Closing Date, of Xxxxxxx LLP, special Maryland counsel for the Company to the effect set forth in Exhibit B-3 hereto, each in form and substance reasonably acceptable satisfactory to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the CompanyUnderwriters, together with signed or reproduced copies of such letters for each of the other counsel reasonably acceptable to the RepresentativesUnderwriters.
(c) The Representatives shall have received from Axxxxx & Bird Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering their opinion as aforesaid, Xxxx Xxxxxxxx LLP may rely upon an opinion, dated as of the Closing Date, of Xxxxxxx LLP, as to matters governed by Maryland law, or such other counsel satisfactory to the Representatives.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman chief executive officer of the Board or the President or any Vice President Company and the principal financial or accounting officer or Treasurer of the Company, dated on behalf of the Closing Date, Company to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate signed by the chief executive officer, president or a senior managing director of the Manager and the principal financial officer (or persons having equivalent functions) of the Manager, on behalf of the Manager to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that (i) the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and (ii) the Manager has complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date.
(f) At the Execution Time and at the Closing Date, the Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(g) At the Execution Time and at the Closing Date, the Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Company and Blackstone and its affiliates included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent to At the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated Time and at the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for a certificate signed by the Company, satisfactory Chief Financial Officer of the Company certifying as to the Representatives preparation, completeness and dated accuracy of certain financial and statistical data relating to the Closing DateCompany included or incorporated by reference in the Registration Statement, confirming their opinion as to United States tax matters set forth in the Disclosure Package or the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) The FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(l) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter or letters, substantially in the form of Exhibit A-1 and A-2 hereto, signed by each of the parties identified on Schedule IV hereto (the “Lock-Up Agreements”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement.
(n) The Acquisition Agreements shall not have been terminated, and the Company shall not have actual knowledge of any event or condition having occurred that would give any party to the Acquisition Agreements the right to terminate any of the Acquisition Agreements, other than events and conditions that have been cured within any applicable cure period or that have been waived in writing. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions opinions, letters and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Blackstone Mortgage Trust, Inc.), Underwriting Agreement (Blackstone Mortgage Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinionrequested and caused Xxxxxx, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx Xxxxxxxxxx & Fxxx Xxxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Schedule V hereto.
(c) The Representatives shall have received from Axxxxx Skadden, Arps, Slate, Xxxxxxx & Bird Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or Board, the Chief Executive Officer, the President or any Senior Vice President and by the principal financial or accounting officer or Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to stating in effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Registration Statement, Disclosure Package the Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to September 30, 2011, nothing came to their attention which caused them to believe that, with respect to the period subsequent to September 30, 2011, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt or short-term borrowings of the Company and its subsidiaries or the capital stock of the Company or decreases in current assets or the shareholders’ equity of the Company, as compared with the amounts shown on the September 30, 2011 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; provided, howeveror for the period from October 1, that 2011 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, income before income taxes or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter furnished on and dated shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Closing Date shall use a “cut-off” date no more than three business days prior Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Closing DateRegistration Statement, including the information set forth under the captions “Ratio of Earnings to Fixed Charges” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, and the information included or incorporated by reference in Items 1, 1A, 6, 7 and 7A of the Company’s Annual Report on Form 10-K and the information included in “Management’s Discussion and Analysis of Financial Conditions and Results of Operations” included in the Company’s Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, change in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of PG&E Corporation’s or the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Four Times Square, New York, New York, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Pg&e Corp), Underwriting Agreement (Pg&e Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Bonds shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer and ETI contained herein in this Underwriting Agreement, on the part of ETI contained in Article III of the Sale Agreement, and on the part of ETI contained in Section 6.01 of the Servicing Agreement as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company Issuer and ETI made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer and ETI of its their obligations hereunder hereunder, and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, Prospectus shall have been filed in with the manner and within Commission pursuant to Rule 424 prior to 5:30 P.M., New York City time, on the time period required by Rule 424(b); second business day after the final term sheet contemplated by Section 4(b) heretodate of this Underwriting Agreement. In addition, and any other all material required to be filed by the Company Issuer or ETI pursuant to Rule 433(d) under the Securities Act that was prepared by either of them or that was prepared by any Underwriter with the Issuer’s consent and timely provided to the Issuer or ETI shall have been filed with the Commission within the applicable time periods period prescribed for such filings filing by Rule 433; and no 433(d) under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement shall have been issued be in effect, and no proceedings for that purpose shall be pending before, or threatened by, the Commission on the Closing Date; and the Underwriters shall have been instituted received one or threatenedmore certificates, dated the Closing Date and signed by an officer of ETI and the Issuer, as appropriate, to the effect that no such stop order is in effect and that no proceedings for such purpose are pending before, or to the knowledge of ETI or the Issuer, as the case may be, threatened by, the Commission.
(bc) The Company Counsel for the Underwriters shall have furnished to the Representatives the their written opinion, dated the Closing Date, in form and substance reasonably acceptable satisfactory to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the SecuritiesBonds, the Indenture, the Registration Statementother Basic Documents, the Disclosure Package, the Final Prospectus (together with any supplement thereto) Registration Statement and other related matters as the Representatives may reasonably require, matters; and the Company such counsel shall have furnished to received such counsel such documents papers and information as they may reasonably request for the purpose of enabling to enable them to pass upon such matters.
(d) The Company Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for ETI and the Issuer, shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Companytheir written opinion, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within regarding the meaning filing of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph voluntary bankruptcy petition.
(e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time orXxxxxxxx, if earlierXxxxxx & Finger, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)P.A., the Disclosure Package special Delaware counsel for ETI and the Final Prospectus (exclusive of any supplement thereto)Issuer, there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory furnished to the Representatives such opinion or opinionstheir written opinion, dated the Closing Date, with respect in form and substance reasonably satisfactory to compliance with the laws of any countryRepresentatives, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such regarding certain Delaware security interest matters.
(if) If indicated in Schedule I hereto as being applicable to the offering of any SecuritiesNorton Xxxx Xxxxxxxxx US LLP, the Representatives shall have received an opinion from tax counsel for the CompanyIssuer and ETI, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further informationtheir written opinion, certificates and documents as dated the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this AgreementClosing Date, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance reasonably satisfactory to the Representatives, regarding certain aspects of the transactions contemplated by the Basic Documents, including the Indenture and the Trustee’s security interest under the Uniform Commercial Code, enforceability and certain Texas perfection issues.
(g) Norton Xxxx Xxxxxxxxx US LLP, counsel for the Issuer and ETI, shall have furnished to the Representatives and their counselwritten opinion, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, dated the Closing Date Date, in form and substance reasonably satisfactory to the Representatives, regarding various issues requested by the Representatives. Notice of such cancellation , including negative assurances and other corporate matters.
(h) Norton Xxxx Xxxxxxxxx US LLP, counsel for the Issuer and ETI, shall be given have furnished to the Company Representatives their written opinion, dated the Closing Date, in writing form and substance reasonably satisfactory to the Representatives, regarding certain bankruptcy issues.
(i) Xxxxxxx Xxxx Xxxx & Xxxxxx, LLP, Texas counsel for the Issuer and ETI, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, regarding certain Texas constitutional matters relating to the Transition Property.
(j) Norton Xxxx Xxxxxxxxx US LLP, counsel for the Issuer and ETI, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, regarding certain federal tax matters.
(k) Norton Xxxx Xxxxxxxxx US LLP, counsel for the Issuer and ETI, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, to the effect that (i) the Transition Property is not subject to the lien of ETI’s Indenture, Deed of Trust and Security Agreement, dated as of October 1, 2008, as supplemented and modified, and (ii) ETI’s sale of the Transition Property to the Issuer pursuant to the Sale Agreement will not conflict with, or result in a default under, the Third Amended and Restated Credit Agreement, dated as of June 3, 2021, among ETI and the other parties named therein.
(l) Xxxxxxx Xxxx Xxxx & Xxxxxx, LLP, Texas counsel for the Issuer and ETI, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, with respect to the characterization of the transfer of the Transition Property by telephone ETI to the Issuer as a “true sale” for Texas law purposes.
(m) Norton Xxxx Xxxxxxxxx US LLP, counsel for the Issuer and ETI, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, regarding certain federal constitutional matters relating to the Transition Property.
(n) Xxxxx Xxxxxx & Xxxxxx LLP, counsel for the Indenture Trustee, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, regarding certain matters relating to the Indenture Trustee.
(o) Xxxxxxx Xxxx Xxxx & Xxxxxx, LLP, special regulatory counsel for ETI and the Issuer, shall have furnished to the representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, regarding certain Texas regulatory issues.
(p) Xxxxxxx Xxxx Xxxx & Xxxxxx, LLP, special regulatory counsel for ETI and the Issuer, shall have furnished to the representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, with respect to the treatment of retail electric provider payments as System Restoration Charges.
(q) Xxxxxxx Xxxx Xxxx & Xxxxxx, LLP, counsel to ETI and the Issuer, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, regarding various issues requested by the Representatives, including enforceability and certain Texas perfection and priority issues.
(r) Norton Xxxx Xxxxxxxxx US LLP, counsel for the Issuer and ETI, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, regarding certain bankruptcy and creditors’ rights issues relating to the Issuer.
(s) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Issuer and ETI, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, regarding certain matters of Delaware law.
(t) Xxxxxxx Xxxx Xxxx & Xxxxxx, LLP, Texas counsel for the Issuer and ETI, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, regarding the possibility and merits of a challenge to the securitization financing authorized by the Financing Act.
(u) Xxxxxxx Xxxx Xxxx & Xxxxxx, LLP, Texas counsel for the Issuer and ETI, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, as to certain Texas tax matters.
(v) Xxxxxxx Xxxx Xxxx & Xxxxxx, LLP, Texas counsel for the Issuer and ETI, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, as to the consequences of the abolishment of the PUCT or facsimile confirmed the repeal of the Financing Act by operation of the Texas Sunset Act.
(w) Xxxxxxx Xxxx Xxxx & Xxxxxx, LLP, Texas counsel for the Issuer and ETI, shall have furnished to the Representatives their written opinion, dated the Closing Date, in writingform and substance reasonably satisfactory to the Representatives, with respect to additional corporate matters.
(x) Xxxx X. Xxxxxx, Esq., Assistant General Counsel—Corporate and Securities of Entergy Services, LLC, shall have furnished to the Representatives her written opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, with respect to additional corporate matters.
Appears in 2 contracts
Samples: Underwriting Agreement (Entergy Texas, Inc.), Underwriting Agreement (Entergy Texas, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its their obligations hereunder and to the following additional conditions:
(a) The Registration Statement has shall have become effective prior to the Execution Timeeffective; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b4(c) hereto, and any other material required to be filed by the Company Issuers pursuant to Rule 433(d) under the Act ), shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; if filing of any Issuer Free Writing Prospectus is required by Rule 433, each such Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have furnished received an opinion of (i) Xxxxxx Xxx LLP, Irish counsel to the Representatives Company and (ii) Xxxxx & Xxxxx SCS, Luxembourg counsel to the opinionCo-Issuer, in each case dated the Closing Date, Date and in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable satisfactory to the Representatives.
(c) The Representatives shall have received an opinion and 10b-5 statement of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Issuers, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Axxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such an opinion or opinionsand 10b-5 statement, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, Package and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company Issuers shall have furnished to the Representatives a certificate of the CompanyIssuers, signed by the Chairman of the Board or the President or any Vice President Chief Executive Officer and the principal financial or accounting officer or Treasurer of the CompanyCompany and an authorized representative of the Co-Issuer, respectively, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, the Disclosure Package and any supplement amendments or amendments to the Final Prospectussupplements thereto, as well as each electronic road show and any other road show that is a written communication, used in connection with the offering of the Securities, and this Agreement and that:
(i) The no stop order suspending the effectiveness of the Registration Statement or any notice objecting to the use of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the Issuers’ knowledge, threatened;
(ii) the representations and warranties of the Company each Issuer in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company each Issuer has complied hereunder with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since solely with respect to the certificate of the Issuer, since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement theretoamendments or supplements thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), there has not been no material adverse change a change, or development involving a prospective change, in or affecting the condition (business, properties, management, financial position or other), earnings, business or properties results of operations of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businesssubsidiaries that would have a Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus and the Disclosure Package and the Final Prospectus (exclusive of any supplement theretoamendments or supplements thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof).
(ef) At the Execution Time and on the Closing Date, Ernst & Young LLP the Issuers shall have furnished requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as of the Execution Time date of this Agreement and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are it is an independent registered public accounting firm accountant within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and covering matters that are ordinarily covered by containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, however, provided that the letter furnished delivered on and dated as of the Closing Date shall use a “cut-off” date no more than three business days Business Days prior to the Closing Date. References to the Registration Statement, any Preliminary Prospectus and the Final Prospectus in this paragraph (ef) include any supplement amendments or supplements thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereofthereof after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement theretothereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof) or any Issuer Free Writing Prospectus (exclusive of any supplement thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the Closing Date comfort letter or letters referred to in paragraph (ef) of this Section 5 (which 6 from the letter or letters shall address any such change, increase or decreases from dated the corresponding amounts contained date hereof referred to in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus paragraph (exclusive f) of any amendment thereof or supplement thereto) this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (business, properties, management, financial position or other), earnings, business or properties results of operations of the Company and its subsidiaries on a consolidated basis, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (in each case, exclusive of any supplement or amendment thereto other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof) the effect of which in any case referred to in clause paragraph (ig)(i) or (ii) aboveof this Section 6, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and Package, the Final Prospectus and any Issuer Free Writing Prospectus (exclusive of any supplement theretothereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof).
(gh) Subsequent to the earlier of the Initial Sale Time and the Execution Time, there shall not have been any decrease in the ratings rating of any of the Companyeither Issuer’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives The Securities shall have received an opinion from tax counsel be eligible for the clearance and settlement through The Depository Trust Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company Issuers shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably requestrequest for the purpose of enabling them or their counsel to pass upon the issuance of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Issuers in writing or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Samples: Underwriting Agreement (Johnson Controls International PLC), Underwriting Agreement (Johnson Controls International PLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of any officer of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Manager of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus or the Final Prospectus shall have been issued and no proceedings for that purpose shall any of those purposes have been instituted or threatenedare pending or, to the Company’s knowledge, threatened or contemplated.
(b) The Company Representatives shall have furnished to the Representatives received (i) the opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Manager, to the effect set forth in Exhibit B-1 hereto; (ii) the tax opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Manager, to the effect set forth in Exhibit B-2 hereto; (iii) the negative assurance letter, dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Manager, to the effect set forth in Exhibit B-3 hereto and (iv) the opinion, dated as of the Closing Date, of Xxxxxxx LLP, special Maryland counsel for the Company, to the effect set forth in Exhibit B-4 hereto, each in form and substance reasonably acceptable satisfactory to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the CompanyUnderwriters, together with signed or reproduced copies of such letters for each of the other counsel reasonably acceptable to the RepresentativesUnderwriters.
(c) The Representatives shall have received from Axxxxx & Bird Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering their opinion as aforesaid, Xxxx Xxxxxxxx LLP may rely upon an opinion, dated as of the Closing Date, of Xxxxxxx LLP, as to matters governed by Maryland law, or such other counsel satisfactory to the Representatives.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman chief executive officer of the Board or the President or any Vice President Company and the principal financial or accounting officer or Treasurer of the Company, dated on behalf of the Closing Date, Company to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate signed by the chief executive officer, president or a senior managing director of the Manager and the principal financial officer (or persons having equivalent functions) of the Manager, on behalf of the Manager to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that (i) the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and (ii) the Manager has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(f) At the Execution Time and at the Closing Date, the Representatives shall have received from Deloitte & Touche, LLP letters dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Company and Blackstone and its affiliates included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (including any supplement thereto at the date of the letter).
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to At the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated Time and at the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for a certificate signed by the Company, satisfactory Chief Financial Officer of the Company certifying as to the Representatives preparation, completeness and dated accuracy of certain financial and statistical data relating to the Closing DateCompany included or incorporated by reference in the Registration Statement, confirming their opinion as to United States tax matters set forth in the Disclosure Package or the Final Prospectus.
(ji) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(k) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) Subsequent to the Execution Time, there shall not have been any downgrading of more than two credit rating levels (for the avoidance of doubt, the Company shall maintain a credit rating of at least B1 and B- from Xxxxx’x Investors Service, Inc. (“Moody’s”) and Standard & Poor’s Ratings Services (“S&P”), respectively) in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential downgrading in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(m) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter or letters, substantially in the form of Exhibit A-1 and A-2 hereto, signed by each of the parties identified on Schedule IV hereto (the “Lock-Up Agreements”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions opinions, letters and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Blackstone Mortgage Trust, Inc.), Underwriting Agreement (Blackstone Mortgage Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Applicable Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement has become effective prior to the Execution Time; if filing of the Canadian Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures and (ii) the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L. of Form F-10 under the Act, in the manner and each case, within the applicable time period required by Rule 424(b)prescribed for such filing and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 4(b5(a) heretohereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings filing by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission or the Reviewing Authority;
(b) The Company shall have requested and caused Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, United States special counsel for the Company, to have furnished to the Representatives the their opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, to the effect that:
(i) the statements in the Disclosure Package and the letterU.S. Final Prospectus under the heading “Certain Income Tax Information — Certain United States Federal Income Tax Considerations,” to the extent that they constitute summaries of United States federal statutes, dated rules and regulations or portions thereof, have been reviewed by such counsel and fairly summarize the matters described under that heading in all material respects;
(ii) the Indenture (to the extent execution and delivery are governed by the laws of New York) has been duly executed and delivered by the Company. The Indenture constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that the enforceability of the Indenture may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and possible judicial action giving effect to governmental actions relating to persons or transactions or foreign laws affecting creditors’ rights and subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law), and the Indenture conforms in all material respects to its description contained in the Disclosure Package and the U.S. Final Prospectus under the headings “Description of the Notes” and “Description of Debt Securities”. The Indenture has been duly qualified under the Trust Indenture Act;
(iii) the Securities (to the extent execution is governed by the laws of New York) have been duly executed by the Company. The Securities, when duly issued and delivered by the Company against payment as provided in the Underwriting Agreement, will constitute the legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, except that the enforceability of the Securities may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and possible judicial action giving effect to governmental actions relating to persons or transactions or foreign laws affecting creditors’ rights and subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); and the Securities, when issued and delivered, will conform in all material respects to the description contained in the Disclosure Package and the U.S. Final Prospectus under the captions “Description of the Notes” and “Description of Debt Securities”;
(iv) the Registration Statement, the Form F-X, the Preliminary Prospectus and the U.S. Final Prospectus, as of their respective effective or issue times, appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the rules and regulations of the Commission under the Act, except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from any of them, and the Form T-1, as to which such counsel expresses no opinion. Such counsel has assumed, for purposes of this paragraph, the compliance of the Canadian Base Prospectus and the Canadian Final Prospectus with the requirements of Alberta Securities Laws, as interpreted and applied by the Alberta Securities Commission. Such counsel understands that such matters are covered in the opinion of Xxxxxx XxXxxx LLP to be furnished on the Closing Date, in form and substance reasonably acceptable ;
(v) this Agreement (to the Representatives, extent execution and delivery are governed by the laws of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for New York) has been duly executed and delivered by the Company;
(vi) the Company is not and, or such other counsel reasonably acceptable after giving effect to the Representatives.offering and sale of the Securities, and the application of their proceeds as described in the Disclosure Package and the U.S. Final Prospectus under the heading “Use of Proceeds,” will not be required to be registered as an investment company under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder;
(cvii) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of Securities by the Company, signed the execution and delivery by the Chairman Company of the Board Underwriting Agreement and the Indenture and the performance by the Company of its obligations thereunder will not (A) breach or result in a default under any agreement, indenture or instrument listed on Schedule I to such counsel’s opinion or (B) violate those laws, rules and regulations of the President United States of America and the State of New York (“Applicable Law”), in each case which in such counsel’s experience are normally applicable to the transactions of the type contemplated by the Underwriting Agreement or any Vice President and judgment, order or decree of any New York or federal court or Governmental Authority binding upon the principal financial Company listed on Schedule II to such counsel’s opinion, except in the case of clause (A) above, such counsel expresses no opinion with respect to any provision of any agreement, indenture or accounting officer or Treasurer of the Company, dated the Closing Date, instrument listed on Schedule I to such counsel’s opinion to the effect extent that the signers of an opinion with respect to such certificate have carefully examined the Registration Statementprovision would require making any financial, the Disclosure Package, the Final Prospectus, any supplement accounting or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securitiesmathematical calculation or determination, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package case of clauses (A) and (B) above, where the Final Prospectus (exclusive of any supplement thereto)breach, there has been no default or violation could not reasonably be expected to have a material adverse change in the condition (financial or other), earnings, business or properties of effect on the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except taken as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more whole. For purposes of the Representatives)opinion, dated respectively as the term “Applicable Law” does not include federal securities laws (except for purposes of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to opinions expressed in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement theretoix below) or (ii) any changestate securities laws, anti-fraud laws, or any development involving law, rule or regulation that is applicable to the Company, the Indenture, the Securities, this Agreement or the transactions contemplated thereby solely because such law, rule or regulation is part of a prospective changeregulatory regime applicable to any party to this Agreement or any of its affiliates due to the specific assets or business of such party or such affiliate;
(viii) no consent, in approval, authorization or affecting the condition (financial order of, or other)filing, earningsregistration or qualification with, business any Governmental Authority, which has not been obtained, taken or properties of made is required by the Company under any Applicable Law for the issuance and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery sale of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives execution and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, delivery by the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all the Indenture and the performance by the Company of its obligations thereunder. For purposes of such counsel’s opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the Underwriters hereunder may be cancelled at, State of New York or at any time prior to, the Closing Date by the Representatives. Notice United States of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.America;
Appears in 2 contracts
Samples: Underwriting Agreement (Canadian Natural Resources LTD), Underwriting Agreement (Canadian Natural Resources LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing DateDate (including, for the avoidance of doubt, compliance with covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness), to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(ai) The Registration Statement has become effective prior to the Execution Time; if filing of the Canadian Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, Prospectus shall have been filed in with the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) Reviewing Authority under the Act Shelf Procedures and (ii) the U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.K. of Form F-9 under the Act, in each case, within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 4(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission or the Reviewing Authority;
(b) The Company shall have requested and caused Mayer, Brown, Xxxx & Maw, U.S. counsel for the Company, to have furnished to the Representatives the Representative their opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the RepresentativesRepresentative, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx effect set forth in Annex I hereto;
(c) XxXxxxxx Xxxxxxxx LLP, Canadian counsel for the Company, or such other counsel reasonably acceptable shall have furnished to the Representatives.Representative their opinion, dated the Closing Date and addressed to the Representative, with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, to the effect set forth in Annex II;
(cd) The Representatives Representative shall have received from Axxxxx Shearman & Bird LLPSterling, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representative, with respect to the issuance and sale of the Securities, the IndentureIndenture (if applicable), the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably require and request for the purpose of enabling them to pass upon such matters.;
(de) The Representative shall have received from United States in-house counsel to the Company, an opinion to the effect set forth in Annex III;
(f) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and Chief Executive Officer and the principal financial or accounting officer or Treasurer Executive Vice-President Corporate Development and Chief Financial Officer of the Company, dated the Closing Date, to the effect that that:
(i) the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, Canadian Final Prospectus and the U.S. Final Prospectus, any supplement or amendments supplements to the Canadian Final Prospectus, as well as each electronic road show used in connection with Prospectus and the offering of the Securities, U.S. Final Prospectus and this Agreement and that:Agreement;
(iii) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(iiiii) No no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any prospectus relating to the Securities has been issued and no proceedings for that purpose have been instituted orbeen, to the Company’s 's knowledge, threatened; andinstituted or threatened by the Reviewing Authority or the Commission;
(iiiiv) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Canadian Final Prospectus, as amended or supplemented prior to the Execution Time and the U.S. Final Prospectus (exclusive of any supplement thereto)Prospectus, as amended or supplemented prior to the Execution Time, there has been no material adverse change in effect on the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Canadian Final Prospectus, as amended or supplemented prior to the Execution Time and the U.S. Final Prospectus (exclusive of any supplement thereto).Prospectus, as amended or supplemented prior to the Execution Time; and
(ev) the Company is in compliance with the covenants and conditions in the indentures of the Company relating to the creation, assumption or incurrence of funded indebtedness;
(g) At the Execution Time and the Closing Date, Ernst & Young LLP the Representative shall have furnished to the Representatives received from KPMG LLP a letter or letters (which may refer to letters previously delivered to one dated such date or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Datedates, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are an independent registered public accounting firm within the meaning together with signed or reproduced copies of such letter or letters for each of the Act other Underwriters containing statements and information of the applicable rules and regulations thereunder and covering matters that are type ordinarily covered by “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, Disclosure Package the U.S. Final Prospectus and the Canadian Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.;
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)as amended or supplemented prior to the Execution Time, the Disclosure Package and the Canadian Final Prospectus (exclusive of any supplement thereto)as amended or supplemented prior to the Execution Time and the U.S. Final Prospectus as amended or supplemented prior to the Execution Time, there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (eg) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Canadian Final Prospectus, as amended or supplemented prior to the Execution Time and the U.S. Final Prospectus, as amended or supplemented prior to the Execution Time, the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Canadian Final Prospectus (exclusive of any supplement thereto).and the U.S. Final Prospectus;
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s 's debt securities by Mxxxx’x Investors Service, Inc. any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporation.any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change;
(hj) The Representatives If the Registration Statement or an offering of Securities has been filed with the NASD for review, the NASD shall not have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, raised any objection with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity fairness and reasonableness of the Securities, the Prospectus underwriting terms and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.arrangements;
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jk) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Representative and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of the Company, Attention: Corporate Finance Law Department, 000 - 0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx, X0X 0X0 on the Closing Date or such other place as the Representative shall so instruct.
Appears in 2 contracts
Samples: Underwriting Agreement (Transcanada Pipelines LTD), Underwriting Agreement (Transcanada Pipelines LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein as of the Execution Applicable Time and the Closing Date, to the accuracy of the statements of the Company or the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company and Guarantors pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Guarantors, to have furnished to the Representatives the its opinion, dated the Closing DateDate and addressed to the Representatives, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused GableGotwals, counsel for the Company and the Guarantors, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Axxxxx Shearman & Bird Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company and the Guarantors shall have each furnished to the Representatives a certificate of the CompanyCompany and the Guarantor, as the case may be, signed by the Chairman of the Board or the their respective Chief Executive Officer, President or any a Vice President and the principal financial or accounting officer or Treasurer of the CompanyChief Financial Officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus, the Disclosure Package and any supplement supplements or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, thereto and this Agreement and that:
(i) The the representations and warranties of the Company Issuers in Section 1 of this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the Company’s or the Guarantors’ knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(ef) At The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Execution Representatives, at the Applicable Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters “comfort letters” (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Applicable Time and as of the Closing Date, in form and substance satisfactory to the RepresentativesRepresentatives and PricewaterhouseCoopers LLP, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the certain unaudited financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package the Preliminary Prospectus used most recently prior to the Applicable Time and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereto), there shall not have been (i) any adverse change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the business, properties, earnings, results of operations or financial condition of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the any series of Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(gh) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the ratings rating of any of the Company’s or the Guarantors’ debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company and the Guarantors shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone telephone, email or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling, LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date, or as otherwise agreed by the Company and the Representatives.
Appears in 2 contracts
Samples: Underwriting Agreement (Oneok Inc /New/), Underwriting Agreement (Oneok Inc /New/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time and Time, the Closing DateDate and any Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxx, L.L.P., counsel for the Company and the Selling Stockholders, to have furnished to the Representatives the opiniontheir opinions, dated the Closing Date, in form Settlement Date and substance reasonably acceptable addressed to the Representatives, substantially in the forms of Exhibit C and Exhibit D attached hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the letterapplication of laws of any jurisdiction other than the State of New York, dated the state of Delaware, or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in Exhibits C and D shall also include any supplements thereto at the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx & Bird Xxxxxxx Xxxxx Xxxxxx, LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateSettlement Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and each Selling Stockholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Settlement Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final ProspectusProspectus and any amendment or supplement thereto, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Settlement Date with the same effect as if made on the Closing Settlement Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Settlement Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened;
(iii) they have examined the Registration Statement, the Prospectus and the Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and (2) the Prospectus, as of its date and on the applicable Settlement Date, and the Disclosure Package, as of the Execution Time, did not and do not include any untrue statement of a material fact and did not and do not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and
(iiiiv) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP Each Selling Stockholder shall have furnished to the Representatives a letter certificate, signed by such Selling Stockholder, in the case of a Selling Stockholder that is a natural person, or letters (which may refer by an authorized representative of such Selling Stockholder reasonably satisfactory to letters previously delivered the Representatives, in the case of a Selling Stockholder that is an entity, dated the Settlement Date, to one the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any amendment or more supplement thereto and this Agreement and that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Settlement Date to the same effect as if made on the Settlement Date.
(f) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives), at the Execution Time and at any Settlement Date, letters, dated respectively as of the Execution Time and as of the Closing such Settlement Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters they have performed a review of the unaudited interim financial information of the Company for the nine-month periods ended September 30, 2016 and 2015 and as of September 30, 2016, in accordance with respect to AU 722 and stating in effect that:
(i) in their opinion the audited financial statements and certain financial information contained or incorporated by reference included in the Registration Statement, Disclosure Package the Preliminary Prospectus and the Final ProspectusProspectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its Subsidiaries; providedtheir limited review, howeverin accordance with standards established under AU 722, that of the letter furnished on unaudited interim financial information for the nine-month periods ended September 30, 2016 and dated 2015 and as of September 30, 2016; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the Closing Date shall use comments set forth in such letter; a “cut-off” reading of the minutes of the meetings of the stockholders, directors and committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its Subsidiaries as to transactions and events subsequent to September 30, 2016, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus;
(2) with respect to the period subsequent to September 30, 2016, there were, at a specified date no not more than three business five days prior to the Closing Datedate of the letter, any change in capital stock, increase in long-term debt, or any decreases in consolidated net current assets or members’ equity of the Company as compared with amounts shown on the September 30, 2016, unaudited condensed consolidated balance sheet included in the Registration Statement, or for the period from October 1, 2016 to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in consolidated total revenues, net income (loss) or net income (loss) per share, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included in the Registration Statement, the Preliminary Prospectus and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its Subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus, including the information set forth under the caption “Capitalization” in the Preliminary Prospectus and the Prospectus, agrees with the accounting records of the Company and its Subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) The Underwriters shall have received on each of the dates hereof, any Settlement Date, a letter dated the date hereof or such Settlement Date, as applicable, in form and substance reasonably satisfactory to the Underwriters, of Xxxxx Xxxxx.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) As of the Closing Date, all transactions described in the Preliminary Prospectus under the heading “Corporate Reorganization” shall have been completed in the manner described therein, and the Reorganization will be effective and valid in accordance with the laws of the State of Delaware.
(j) The Company has no debt securities or preferred stock that is rated by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the Exchange Act).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of occurred any of the Company’s debt following: (i) (A) trading in securities by Mxxxx’x Investors Servicegenerally on any securities exchange that has registered with the Commission under Section 6 of the Exchange Act (including the NYSE, Inc. The NASDAQ Global Select Market, The NASDAQ Global Market or Standard & Poor’s Corporation.
The NASDAQ Capital Market), or (hB) The Representatives trading in any securities of the Company on any exchange or in the over-the-counter market, shall have received from counsel satisfactory to been suspended or materially limited or the Representatives settlement of such opinion trading generally shall have been materially disrupted or opinionsminimum prices shall have been established on any such exchange or such market by the Commission, dated by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking activities shall have been declared by federal or state authorities, (iii) the Closing DateUnited States shall have become engaged in hostilities, with respect to compliance with there shall have been an escalation in hostilities involving the laws United States or there shall have been a declaration of any country, other than a national emergency or war by the United States, or (iv) there shall have occurred such a material adverse change in whose currency Securities are denominatedgeneral economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the validity date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the SecuritiesRepresentatives, impracticable or inadvisable to proceed with the Prospectus public offering or delivery of the Securities being delivered on such Settlement Date on the terms and other related matters as they may requirein the manner contemplated in the Prospectus.
(l) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) At the Execution Time, the Company shall have furnished to such counsel such documents as they request for the purpose Representatives a letter substantially in the form of enabling them to pass upon such mattersExhibit A hereto from each Selling Stockholder and each of the individuals listed on Schedule V hereto.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jn) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Xxxxx Xxxxxx, LLP, counsel for the Underwriters, at 000 Xxxxxx Xxxxxx, Suite 4200, Houston, Texas 77002 on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Jagged Peak Energy Inc.), Underwriting Agreement (Jagged Peak Energy Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholder contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Shareholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholder of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bi) The Company shall have requested and caused Xxxxxxx Xxxx & Xxxxx LLP, counsel for the Company and Xxxxx LLC, to have furnished to the Representatives the their opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the RepresentativesUnderwriters, substantially in the form attached hereto as Exhibit C hereto, and (ii) the letter, dated the Closing Date, in form Selling Shareholder shall have requested and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Xxxxxxx Xxxx & Fxxx Xxxxx LLP, counsel for the CompanySelling Shareholder, or such other counsel reasonably acceptable to have furnished to the RepresentativesRepresentatives their opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form attached hereto as Exhibit D hereto.
(c) The Representatives shall have received from Axxxxx Xxxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Selling Shareholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board Chief Executive Officer or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any amendment or supplement or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Material Adverse Effect.
(e) At the Execution Time and the Closing Date, Ernst & Young LLP The Selling Shareholder shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more certificate, signed by an authorized person of the RepresentativesSelling Shareholder, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of the Selling Shareholder in this Agreement are true and correct on and as of the Closing Date to the same effect as if made on the Closing Date and the Selling Shareholder has complied with all the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(f) The Company shall have requested and caused KPMG LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, “comfort” letter(s), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder Representatives and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements of the Company, Xxxxx LLC and Trican and certain other financial information contained or incorporated by reference included in the Registration Statement, Disclosure Package Preliminary Prospectus and the Final Prospectus; providedProspectus and other customary matters.
(g) The Company shall have requested and caused KPMG LLP to have furnished to the Underwriters, howeverat the Execution Time and at the Closing Date, that “comfort” letter(s), dated respectively as of the letter furnished on Execution Time and dated as of the Closing Date Date, in form and substance satisfactory to the Representatives and covering the financial statements of RockPile and certain other financial information included in the Preliminary Prospectus and the Prospectus and other customary matters.
(h) The Company shall use a “cut-off” date no more than three business days prior have requested and caused Xxxxx Xxxxxxxx LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date. References , “comfort” letter(s), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Final Representatives and covering the financial statements of RockPile and certain other financial information included in the Preliminary Prospectus in this paragraph (e) include any supplement thereto at and the date of the letterProspectus and other customary matters.
(fi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company and the Selling Shareholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been duly listed, subject to official notice of issuance, on the New York Stock Exchange.
(m) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the Selling Shareholder, in each case, addressed to the Representatives. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Selling Shareholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Keane Group, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have furnished to the Representatives the opinionreceived from Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth on Exhibit B hereto, of Xxxxxx Xxxxxx Morandi to the effect set forth on Exhibit C hereto and of Shearman & Sterling LLP to the effect set forth on Exhibit D hereto.
(c) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in effect on the condition (financial or other), earningsbusiness, business properties or properties results of operation of the Company and its subsidiariesthe Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At The Representatives shall have received (i) from PricewaterhouseCoopers LLP, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or “comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference Public Company Accounting Oversight Board (United States) (PCAOB) substantially in the Registration Statementform of Exhibit E hereto and (ii) from BDO Xxxx Xxxxxxx LLP, Disclosure Package at the Execution Time and at the Final Prospectus; providedClosing Date, however“comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), that dated respectively as of the letter furnished on Execution Time and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior Date, in form and substance satisfactory to the Closing Date. References Representatives, confirming that they are an independent registered accounting firm with respect to IXEurope within the Final Prospectus in this paragraph (e) include any supplement thereto at the date meaning of the letterAct and the applicable rules and regulations adopted by the Commission and the PCAOB substantially in the form of Exhibit F hereto.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each Section 16 officer and director of the Company addressed to the Representatives.
(j) Subsequent to the execution and delivery of this Agreement and concurrently with or prior to the Closing Date, the Concurrent Stock Offering shall have been completed. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, at 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, XX 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Equinix Inc), Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx, Xxxx & Xxxxxxxx LLP, outside counsel for the Company, to have furnished to the Representatives the opinion, dated the Closing Date, in form their opinion and substance reasonably acceptable to the Representatives, and the negative assurance letter, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, in the form agreed between such counsel for the Company, or such other counsel reasonably acceptable to and the Representatives.
(c) Xxxxxxx Xxxx Xxxxx, Corporate Counsel to the Company, shall have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Representatives, in the form agreed between such counsel and the Representatives.
(d) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may shall reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company contained in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At On the Execution Time date of this Agreement and also on the Closing Date, Ernst Xxxxx & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as the respective dates of the Execution Time and as of the Closing Datedelivery thereof, in form and substance satisfactory to the Representativesyou, confirming that they are an independent registered public accounting firm within the meaning containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any (i) any change in to the capital stock (other than issuances except for the issuance of capital stock upon exercise options or the issuance or vesting of stock options, awards or restricted stock swaps and stock appreciation rights which were outstanding units pursuant to the Company’s equity incentive plans existing on the date hereof or any shares issued pursuant to “earnout” provisions in any completed acquisition by the Company, and except for repurchases of common stock pursuant to the latest consolidated balance sheet included Company’s previously announced common stock repurchase authorization) or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases Material Adverse Effect, otherwise than as set forth or contemplated in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, the suspension or any development involving a prospective change, material limitation of trading in or affecting the condition (financial or other), earnings, business or properties capital stock of the Company and its subsidiaries on The Nasdaq Global Select Market, the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make Representatives makes it impractical impracticable or inadvisable to proceed with the offering or the delivery of the Securities as on the terms and in the manner contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any decrease intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement in the ratings rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersExchange Act).
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Intel Corp), Underwriting Agreement (Intel Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, and the obligations of each Forward Seller to deliver and sell the Borrowed Initial Securities under the terms set forth herein, shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer and the Operating Partnership and the Selling Stockholders contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 4 hereof, to the accuracy of the statements of the Company Issuer, the Operating Partnership and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer, the Operating Partnership and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b)) under the Securities Act; the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company Issuer pursuant to Rule 433(d) under the Act Securities Act, shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of one or both of the Registration Statement Statements or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bi) The Company Issuer shall have requested and Xxxxxxx Procter LLP, counsel for the Issuer, shall have furnished to the Representatives the their opinion, dated the Closing DateDate or the applicable settlement date, in form as the case may be, and substance reasonably acceptable addressed to the Representatives, the Forward Sellers and the letterForward Counterparties substantially in the form attached hereto as Exhibit B; and (ii) the Issuer shall have requested and Xxxxxxx Procter LLP, tax counsel for the Issuer, shall have furnished to the Representatives their opinion, dated the Closing DateDate or the applicable settlement date, in form as the case may be, and substance reasonably acceptable addressed to the Representatives, of Skaddenthe Forward Sellers and the Forward Counterparties, Arps, Slate, Mxxxxxx substantially in the form attached hereto as Exhibit C.
(c) The Selling Stockholders shall have requested and Goulston & Fxxx LLPStorrs PC, counsel for U.S. Government Properties Income & Growth Fund, L.P., U.S. Government Properties Income & Growth Fund II, LP and USGP I REIT Holdings, LP, and Xxxx Xxxxxxxxx, counsel for Easterly GSA I LLC, shall have furnished to the Company, or such other counsel reasonably acceptable Representatives their opinion dated the Closing Date and addressed to the Representatives., substantially in the form attached hereto as Exhibit D:
(cd) The Representatives shall have received from Axxxxx Skadden, Arps, Slate, Xxxxxxx & Bird Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate or the applicable settlement date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration StatementStatements, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuer, the Operating Partnership and each Selling Stockholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company Issuer shall have furnished to the Forward Sellers, Forward Counterparties and the Representatives a certificate of the CompanyIssuer and the Operating Partnership, signed by the Chairman of the Board or the President or any Vice President Chief Executive Officer and the principal financial or accounting officer or Treasurer of the CompanyIssuer and the general partner of the Operating Partnership, dated the Closing DateDate or the applicable settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration StatementStatements, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Underwriting Agreement and that:
(i) The the representations and warranties of the Company Issuer and the Operating Partnership in this Underwriting Agreement are true and correct in all material respects on and as of the Closing Date or the applicable settlement date, as the case may be, (except those related to a specific date) with the same effect as if made on the Closing Date Date, and each of the Issuer and the Company Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or the applicable settlement date, as the case may be;
(ii) No no stop order suspending the effectiveness of one or both of the Registration Statement Statements or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledgeknowledge of the Issuer or the Operating Partnership, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) The Representatives shall have received a certificate from each of the Selling Stockholders, dated the Closing Date, to the effect that the Selling Stockholders have carefully examined the Registration Statements, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any supplements or amendments thereto and this Underwriting Agreement, and that the representations and warranties of such Selling Stockholder in this Underwriting Agreement are true and correct in all material adverse respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Issuer shall have requested and PricewaterhouseCoopers LLP shall have furnished to the Forward Sellers, the Forward Counterparties and the Representatives, at the Execution Time and at the Closing Date, or the applicable settlement date, as the case may be, letters (which may refer to letters previously delivered to the Forward Sellers, the Forward Counterparties or one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, or the applicable settlement date, as the case may be, in form and substance satisfactory to the Forward Sellers, the Forward Counterparties and the Representatives, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the SEC thereunder and containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statements, the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statements (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 9 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company Issuer and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement Statements (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent Prior to the Execution Time, there shall not have been Closing Date and any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominatedsettlement date, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company Issuer shall have furnished to such counsel such documents as they request for the purpose Representatives, certificates of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering Chief Financial Officer of any Securitiesthe Issuer, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth substantially in the Final Prospectusform of Exhibit E hereto.
(j) Prior to the Closing DateDate and any settlement date, the Company Issuer and the Selling Stockholders shall have furnished to the Forward Sellers and the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) The Securities shall have been listed and admitted and authorized for trading on the NYSE, subject to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) FINRA, upon review of the terms of the public offering, of the Securities shall not have objected to such offering, such terms or the participation of the Underwriters, the Forward Sellers and the Forward Counterparties in the same.
(m) At or prior to the Execution Time, the Issuer shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Issuer set forth in Exhibit A addressed to the Representatives. If any of the conditions specified in this Section 5 9 shall not have been fulfilled in all material respects when and as provided in this Underwriting Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Underwriting Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Forward Sellers and the Representatives and their counselcounsel for the Forward Sellers and the Underwriters, this Underwriting Agreement and all obligations of the Forward Sellers and the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Issuer and each Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 9 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at 0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attn: Xxxxx X. Xxxxxxxxxxx, on the Closing Date or the applicable settlement date, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (Easterly Government Properties, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its their obligations hereunder and to the following additional conditions:
(a) The Registration Statement has shall have become effective prior to the Execution Timeeffective; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b4(c) hereto, and any other material required to be filed by the Company Issuers pursuant to Rule 433(d) under the Act ), shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; if filing of any Issuer Free Writing Prospectus is required by Rule 433, each such Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have furnished received an opinion of (i) Xxxxxx Xxx, Irish counsel to the Representatives Company and (ii) Xxxxx & Overy SCS, Luxembourg counsel to the opinionCo-Issuer, in each case dated the Closing Date, Date and in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable satisfactory to the Representatives.
(c) The Representatives shall have received an opinion and 10b-5 statement of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Issuers, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Axxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such an opinion or opinionsand 10b-5 statement, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, Package and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company Issuers shall have furnished to the Representatives a certificate of the CompanyIssuers, signed by the Chairman of the Board or the President or any Vice President Chief Executive Officer and the principal financial or accounting officer or Treasurer of the CompanyCompany and an authorized representative of the Co-Issuer, respectively, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, the Disclosure Package and any supplement amendments or amendments to the Final Prospectussupplements thereto, as well as each electronic road show and any other road show that is a written communication, used in connection with the offering of the Securities, and this Agreement and that:
(i) The no stop order suspending the effectiveness of the Registration Statement or any notice objecting to the use of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the Issuers’ knowledge, threatened;
(ii) the representations and warranties of the Company each Issuer in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company each Issuer has complied hereunder with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since solely with respect to the certificate of the Issuer, since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement theretoamendments or supplements thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), there has not been no material adverse change a change, or development involving a prospective change, in or affecting the condition (business, properties, management, financial position or other), earnings, business or properties results of operations of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businesssubsidiaries that would have a Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus and the Disclosure Package and the Final Prospectus (exclusive of any supplement theretoamendments or supplements thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof).
(ef) At the Execution Time and on the Closing Date, Ernst & Young LLP the Issuers shall have furnished requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as of the Execution Time date of this Agreement and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are it is an independent registered public accounting firm accountant within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and covering matters that are ordinarily covered by containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, however, provided that the letter furnished delivered on and dated as of the Closing Date shall use a “cut-off” ’ date no more than three business days Business Days prior to the Closing Date. References to the Registration Statement, any Preliminary Prospectus and the Final Prospectus in this paragraph (ef) include any supplement amendments or supplements thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereofthereof after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement theretothereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof) or any Issuer Free Writing Prospectus (exclusive of any supplement thereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the Closing Date comfort letter or letters referred to in paragraph (ef) of this Section 5 (which 6 from the letter or letters shall address any such change, increase or decreases from dated the corresponding amounts contained date hereof referred to in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus paragraph (exclusive f) of any amendment thereof or supplement thereto) this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (business, properties, management, financial position or other), earnings, business or properties results of operations of the Company and its subsidiaries on a consolidated basis, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus (in each case, exclusive of any supplement or amendment thereto other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof) the effect of which in any case referred to in clause paragraph (ig)(i) or (ii) aboveof this Section 6, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and Package, the Final Prospectus and any Issuer Free Writing Prospectus (exclusive of any supplement theretothereto after the Execution Time other than those to which the Underwriters have not objected or have consented, as applicable, pursuant to Section 4 hereof).
(gh) Subsequent to the earlier of the Initial Sale Time and the Execution Time, there shall not have been any decrease in the ratings rating of any of the Companyeither Issuer’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives The Securities shall have received an opinion from tax counsel be eligible for the clearance and settlement through The Depository Trust Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company Issuers shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably requestrequest for the purpose of enabling them or their counsel to pass upon the issuance of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Issuers in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Johnson Controls International PLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities International Firm Shares and the International Option Shares, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholder contained herein as of the Execution Time and Time, the Closing DateDate and any Settlement Date pursuant to Section 4 hereof, to the accuracy of the statements of any officer the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement, including any Rule 462(b) Registration Statement, and the ADR Registration Statement has become effective prior effective, and at the Closing Date or any Settlement Date, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement and the ADR Registration Statement or any notice objecting to their use shall have been issued under the Act or proceedings therefor initiated or, to the Execution Time; if filing knowledge of the Final ProspectusCompany, or any supplement thereto, is required pursuant to Rule 424(b), threatened by the Final ProspectusCommission, and any such supplement, request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. The Final Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); ) or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the final term sheet contemplated by Section 4(b) hereto, and any requirements of Rule 430A. Any other material required to be filed by the Company pursuant to Rule 433(d) 433 under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, special U.S. counsel for the Company and the Selling Shareholder, to have furnished to the Representatives the opinion, dated the Closing Date, in form Representative their opinion and substance reasonably acceptable to the Representatives, and the negative assurance letter, dated the Closing DateDate and addressed to the Representative, in form the forms of Exhibit B-1 and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the RepresentativesB-2 hereto.
(c) The Representatives Company shall have requested and caused Xxxxx Xxxxxxx, S.C., special Mexican counsel for the Company and the Selling Shareholder, to have furnished to the Representative their opinion and negative assurance letter, dated the Closing Date and addressed to the Representative, in the form of Exhibit C-1 and C-2 hereto.
(d) The Depositary shall have requested and caused Xxxxxxx, Xxxxxxx & Associates LLP, counsel for the Depositary, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, in the form of Exhibit D hereto.
(e) The Representative shall have received from Axxxxx & Bird Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representative, with respect to the issuance and sale of the SecuritiesInternational Shares, the IndentureRegistration Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(df) The Representative shall have received from Raz Xxxxxx, S.C., Mexican counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the sale of the International Shares, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President chief executive officer and the principal financial or accounting officer or Treasurer of the Company, on behalf of the Company and not in their individual capacity, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the SecuritiesInternational Shares, this Agreement and this the Mexican Underwriting Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No The Registration Statement and the ADR Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the ADR Registration Statement or the Registration Statement or any notice objecting to their use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse event or condition of a type that would, individually or in the aggregate, result in a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(h) The Selling Shareholder shall have furnished to the Representative a certificate of the Selling Shareholder, signed by the Selling Shareholder or appropriate representative or attorney-in-fact on behalf of the Selling Shareholder, dated the Closing Date, to the effect that the representations and warranties of the Selling Shareholder in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Selling Shareholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(i) The Company shall have requested and caused Galaz, Yamazaki, Xxxx Xxxxxxx, S.C., member firm of Deloitte Touche Tohmatsu Limited, independent auditors for the Company, to have furnished to the Representative, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representative), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 8 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities International Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gk) Subsequent The closing of the purchase of the Mexican Base Shares to be sold by the Selling Shareholder pursuant to the Execution Time, there Mexican Underwriting Agreement shall not have been any decrease in occur concurrently with the ratings of any closing of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporationpurchase of the International Firm Shares described herein.
(hl) The Representatives Depositary shall have received from counsel furnished or caused to be furnished to the Representative certificates satisfactory to the Representatives such opinion or opinions, dated Representative evidencing the deposit with the Custodian of the Underlying Shares in respect of which ADSs are to be issued on the Closing Date, with respect to compliance with and the laws of any countryexecution, other than the United Statesissuance, in whose currency Securities are denominated, the validity countersignature (if applicable) and delivery of the Securities, ADRs evidencing such ADSs pursuant to the Prospectus Deposit Agreement and such other matters related matters thereto as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersRepresentative reasonably request.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jm) Prior to the Closing Date, the Company and the Selling Shareholder shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(n) FINRA, upon review, if any, of the terms of the public offering of the International Shares, shall not have objected to such offering, such terms or the Underwriters’ participation in the same.
(o) The ADSs and Series B Shares shall have been listed and the ADSs shall have been admitted and authorized for trading on NASDAQ, and satisfactory evidence of such actions shall have been provided to the Representative.
(p) Prior to the Execution Time, the Company shall have furnished to the Representative the Lock-Up Agreements.
(q) The CNBV shall have authorized the public offering of the Mexican Shares. No order or other type of official communication suspending the public offering of the Mexican Shares shall have been issued by the CNBV or a Mexican judicial authority and continue in effect.
(r) All approvals required under the laws of Mexico at the Closing Date, including the approval by the CNBV to conduct a public offering in Mexico of the Mexican Shares shall have been obtained. The Company and the Selling Shareholder will use their commercially reasonable efforts to enforce the terms of each Lock-Up Agreement.
(s) The Series B Shares underlying the International Shares shall have been delivered and credited to the Mexican custodian for the Depositary, through the systems of Indeval as the Representative shall reasonably specify.
(t) There shall not have been any decrease in or withdrawal of the rating of any securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in or withdrawal of any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. If any of the conditions specified in this Section 5 8 shall not have been fulfilled in all material respects when and as provided in this Agreementherein, or if any of the opinions opinions, letters and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Representative and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company and the Selling Shareholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 8 shall be delivered at the office of Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Central North Airport Group)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A or Rule 401(g)(2) under the Securities Act shall have been instituted or threatened.
(b) The Company XxXxxxxxx, Will & Xxxxx LLP, special counsel for the Company, shall have furnished to the Representatives Underwriters its written opinion addressed to the opinionUnderwriters, dated the Closing Date, in form and substance reasonably acceptable satisfactory to the Representatives, and substantially in the letterform of Annex I hereto.
(c) Xxxxx Xxxxxxx LLP, counsel for the Issuers, shall have furnished to the Underwriters its written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably acceptable satisfactory to the Representatives, substantially in the form of Skadden, Arps, Slate, Mxxxxxx & Fxxx Annex II hereto;
(d) DLA Piper Xxxx Xxxx US LLP, local counsel for one of the CompanyGuarantors, or such other counsel shall have furnished to the Underwriters its written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably acceptable satisfactory to the Representatives., substantially in the form of Annex III hereto;
(ce) The Representatives shall have received from Axxxxx Xxxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman an executive officer of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of Company with specific knowledge about the Company’s financial and operational matters reasonably satisfactory to the Representatives, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show Electronic Road Show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or pursuant to Section 8A or Rule 401(g)(2) under the Securities Act has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)since May 31, 2006, there has been no material adverse change in the condition (financial shall not have occurred any event that would have a Material Adverse Effect or other), earnings, business or properties of the Company and its subsidiariesany development involving a prospective Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(eg) At The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning Representatives containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx LLP counsel for the Underwriters, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Constellation Brands, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused Xxxxx Xxxx & Fxxx Xxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives opinions substantially in the form of Exhibit A and Exhibit B hereto, dated the Closing Date and addressed to the Representatives.
(c) The General Counsel of the Company shall have furnished to the Representatives her opinion substantially in the form of Exhibit C hereto, dated the Closing Date and addressed to the Representatives.
(d) The Representatives shall have received from Axxxxx Xxxxxxx Xxxxxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman Chief Executive Officer, the Chief Operating Officer or a Senior Vice President of the Board or the President or any Vice President Company and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in effect on the condition (financial or otherotherwise), prospects, earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At On the Execution Time date of this Agreement and on the Closing Date, Ernst & Young PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more Representatives, at the request of the Representatives)Company, letters, dated respectively as the respective dates of delivery thereof and addressed to the Execution Time and as of the Closing DateRepresentatives, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Final Prospectus; provided, however, provided that the letter furnished delivered on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there (i) no downgrading shall not have been any decrease occurred in the ratings rating accorded to the Securities or any other debt securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined under Section 3(a)(62) of the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any of the Company’s other debt securities issued or guaranteed by Mxxxx’x Investors Service, Inc. the Company or Standard & Poor’s Corporationany of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) The Securities shall be eligible for clearance and settlement through Euroclear and Clearstream. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (V F Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of at the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any the certificates to be delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of caused Skadden, Arps, Slate, Mxxxxxx Xxxxxxx & Fxxx Xxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit A hereto.
(c) The Company shall have requested and caused the Vice President and General Counsel for the Company or an assistant General Counsel or Corporate Counsel to the Company that has been admitted to practice law in the State of Connecticut, to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit B hereto.
(d) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect Date and addressed to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related Representatives regarding such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the Chairman Chief Executive Officer of the Board or the President or any Vice President Company and (y) the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement amendments or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securitiessupplements thereto, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse Material Adverse Effect, except as set forth in, incorporated by reference in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Exchange Act with respect to the Company and The Black & Xxxxxx Corporation and the applicable published rules and regulations thereunder and containing statements and information of a type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company and The Black & Xxxxxx Corporation contained in or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given or incorporated by reference in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) The Company shall have applied to list the Securities on the New York Stock Exchange and satisfactory evidence of such action shall have been provided to the Representatives. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the offices of counsel for the Underwriters, at Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Stanley Black & Decker, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Securities Notes, as provided herein, shall be subject to the accuracy accuracy, as of the date hereof, as of the Applicable Time and as of the Closing Date, of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofherein, to the performance by the Company of its obligations hereunder hereunder, and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, Company shall have been filed the Prospectus with the Commission (including the information required by Rule 430B under the Act) in the manner and within the time period required by Rule 424(b)) under the Act; or the final term sheet contemplated Company shall have filed a post-effective amendment to the Registration Statement containing the information required by Section 4(bRule 430B, and such post-effective amendment shall have become effective.
(b) heretoThe Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed beenfield with with the Commission within the applicable time periods prescribed for such filings by filing under Rule 433; and no .
(c) No stop order suspending the effectiveness of the Registration Statement Statement, or any post-effective amendment to the Registration Statement, shall have been issued be in effect and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or threatenedany Underwriter, threatened by the Commission; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to your satisfaction.
(bd) The Company No Underwriter shall have furnished advised the Company that the Registration Statement, the Disclosure Package or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in your opinion is material or omits to state a fact which in your opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(e) Except as contemplated in the Disclosure Package and the Prospectus, subsequent to the Representatives respective dates as of which information is given in the opinionRegistration Statement, the Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), there shall not have been any change in the capital stock or long-term debt of the Company or any adverse change, or any development involving a prospective adverse change, in the condition, financial or otherwise, or in the business, net worth or results of operations of the Company from that set forth in the Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that in your judgment makes it impractical or inadvisable to offer or deliver the Notes on the terms and in the manner contemplated in the Disclosure Package and the Prospectus.
(f) On the Closing Date, you shall have received the opinion of Xxxxxx X. Xxxxxxx, Esquire, Senior Vice President and General Counsel of the Company, dated the Closing Date, in the form and substance reasonably acceptable to of Exhibit A attached hereto.
(g) On the RepresentativesClosing Date, and you shall have received the letteropinion of XxXxxx Law Firm, P.A., counsel for the Company, dated the Closing Date, in the form and substance reasonably acceptable to of Exhibit B attached hereto.
(h) On the RepresentativesClosing Date, of Skadden, Arps, Slate, Mxxxxxx & Fxxx you shall have received from Xxxxxxxx Xxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the several Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives you may reasonably requirerequest, and the Company such counsel shall have furnished to received such counsel such documents papers and information as they may reasonably request for the purpose of enabling to enable them to pass upon such matters. In rendering their opinion, such counsel may rely upon the opinion of Xxxxxx X. Xxxxxxx, Esquire, referred to above as to all matters governed by South Carolina law.
(di) The Company On the Closing Date, you shall have furnished to received from the Representatives Company a certificate of the Companycertificate, signed by the Chairman of the Board or the its Chairman, President or any a Vice President and the by its Treasurer, principal financial or accounting officer or Treasurer of the Companyprincipal accounting officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statementthat, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering best of the Securities, and this Agreement and thattheir knowledge based on a reasonable investigation:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects respects, as if made on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at as a condition to the obligations of the Underwriters to purchase the Notes, on or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement Statement, or any post-effective amendment to the Registration Statement, has been issued and no proceedings for that purpose have been instituted or, to or threatened by the Company’s knowledge, threatened; andCommission;
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement theretothereto dated after the Execution Time), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiariesSubsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus; and
(iv) the Registration Statement and the Prospectus, and any amendments or supplements thereto, contain all statements and information required to be included therein; the Registration Statement or any amendments thereto, at the time the Registration Statement or such amendments became effective and at the Execution Time, did not contain an untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; the Prospectus, as of its date and at the Closing Date did not and does not contain an untrue statement of a material fact and did not and does not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact and did not omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided, however, that in each case, no representation is made, as applicable, as to any statements in or omissions from the Statement of Eligibility on Form T-1 filed as an exhibit to the Registration Statement, the Book-Entry Information or information contained in or omitted from the Registration Statement or Prospectus (exclusive of or any amendment or supplement theretothereto in reliance upon, and in conformity with, written information furnished to the Company by you, or by any Underwriter through you, specifically for use in the preparation thereof); and, since the date hereof there has occurred no event required to be set forth in an amended or supplemented prospectus which has not been so set forth and there has been no document required to be filed under the Exchange Act and which upon such filing would be deemed to be incorporated by reference in the Disclosure Package and the Prospectus, which has not been so filed.
(ej) At On or prior to the Execution Time and the Closing Datedate hereof, Ernst & Young LLP you shall have furnished received a letter from Deloitte & Touche LLP, dated the date of the execution and delivery of this Agreement, and specifying procedures completed not more than three business days prior to the Representatives a letter or letters (which may refer to letters previously delivered to one or more date of the Representatives)execution and delivery of this Agreement, dated respectively as of the Execution Time addressed to you and as of the Closing Date, in form and substance satisfactory to the Representativesyou, (1) confirming that they are an independent registered public accounting firm within accountants with respect to the meaning of Company as required by the Act and (2) with respect to the applicable rules accounting, financing, or statistical information (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) contained in the Registration Statement or incorporated by reference therein, and regulations thereunder containing statements and covering matters that are information of the type ordinarily covered included in accountants’ SAS 72, as amended by SAS 86, “comfort lettersComfort Letters” to underwriters underwriters, with respect to the financial statements and certain financial information contained in or incorporated by reference in into the Registration Statement, Disclosure Package and the Final Prospectus; provided, howeverincluding any pro forma financial information. At the Closing Date, that you shall have received a letter from Deloitte & Touche LLP, dated the date of its delivery, which shall reaffirm and, if necessary, update, on the basis of a review in accordance with the procedures set forth in the letter furnished on and dated as from Deloitte & Touche LLP, during the period from the date of the Closing Date shall use letter referred to in the prior sentence to a “cut-off” date no (specified in the letter) not more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fk) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there There shall not have occurred after the date hereof any downgrading, nor shall any notice have been (i) given of any intended or potential downgrading or of any review for a possible change that indicates a negative change or does not indicate the direction of the possible change, in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity rating accorded any securities of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income its subsidiaries by any “nationally recognized statistical rating organization” as such term is defined under Section 3(a)(62) of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Exchange Act.
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jl) Prior to or on the Closing Date, the Company shall have furnished to the Representatives each Representative such further information, certificates documents, certificates, letters from accountants and documents opinions of counsel as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the such Representatives and their counsel, this Agreement and all obligations of the Underwriters any Underwriter hereunder may be cancelled at, or canceled at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Company will furnish to you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request, and the opinions referred to in paragraphs (f) and (g) shall be deemed satisfactory provided they are substantially in the forms attached as exhibits to this Agreement. The documents required to be delivered by this Section 5 shall be delivered to the office of XxXxxx Law Firm, P.A., counsel for the Company, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Scana Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Axxxxx & Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst Exxxx & Young Yxxxx LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto)) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Securities shall be eligible for clearance and settlement through Clearstream and Euroclear.
(i) The Company shall have applied to list the Securities on the New York Stock Exchange, and satisfactory evidence of such action shall have been provided to the Representatives.
(j) The Representatives shall have received from counsel counsel, satisfactory to the Representatives Representatives, such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ik) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jl) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company Partnership made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused Xxxxxxx Xxxxx LLP, counsel for the Partnership, to have furnished to the Representatives the its opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, in substantially the form of Exhibit A hereto.
(c) The Partnership shall have requested and caused Xxxxx & Xxxxxxx, counsel for the letterPartnership, to have furnished to the Representatives its opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, in substantially the form of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the RepresentativesExhibit B hereto.
(cd) The Representatives shall have received from Axxxxx Shearman & Bird Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company Partnership shall have furnished to the Representatives a certificate of the CompanyPartnership, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Companygeneral partner of the Partnership, dated the Closing Date, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus, the Disclosure Package and any supplement supplements or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, thereto and this Agreement and that:
(i) The the representations and warranties of the Company Issuers in Section 1 of this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the CompanyPartnership’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(ef) At The Partnership shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters “comfort letters” (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the audited and unaudited financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package the Preliminary Prospectus used most recently prior to the Execution Time and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the business, properties, earnings, results of operations or financial condition of the Partnership and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the CompanyPartnership’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterspossible change.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company Partnership shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling, LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained and the Trust set forth herein as of the Execution Time and the Closing Date, and if applicable, as of the Option Closing Date, as the case may be, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofOfferors' directors and officers, to the performance by the Company and the Trust of its their obligations hereunder hereunder, and to the following additional conditions, except to the extent expressly waived in writing by the Representatives:
(a) The Registration Statement has become and all post-effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, amendments thereto shall have been filed declared effective by the Commission no later than 5:30 p.m. Eastern Time, on the date of this Agreement, or such later time as shall have been consented to by the Representatives, but in any event not later than 5:30 p.m. Eastern Time on the manner and within third full business day following the date hereof; if the Offerors omitted information from the Registration Statement at the time period required by it became effective in reliance on Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) 430A under the Act Securities Act, the Prospectus shall have been filed with the Commission within in compliance with Rule 424(b) and Rule 430A under the applicable time periods prescribed for such filings by Rule 433Securities Act; and no stop order suspending the effectiveness of the Registration Statement or any amendment or supplement thereto shall have been issued and issued; no proceedings proceeding for that purpose the issuance of such an order shall have been instituted initiated or threatenedshall be pending or, to the knowledge of the Offerors or the Representatives, threatened or contemplated by the Commission; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to the Representatives' satisfaction.
(b) The Company Preferred Securities, the Guarantee and the Junior Subordinated Debentures shall have been qualified or registered for sale, or subject to an available exemption from such qualification or registration, under the Blue Sky Laws of such jurisdictions as shall have been reasonably specified by the Representatives and the offering contemplated by this Agreement shall have been cleared by the NASD.
(c) Since the dates as of which information is given in the Registration Statement:
(i) There shall not have been any material adverse change, or any development involving a prospective material adverse change, in the ability of the Company or any Subsidiary to conduct their respective businesses (whether by reason of any court, legislative, other governmental action, order, decree, or otherwise), or in the general affairs, condition (financial and otherwise), business, prospects, properties, management, financial position or earnings, results of operations, or net worth of the Company or any Subsidiary, whether or not arising from transactions in the ordinary course of business; and
(ii) Neither the Company nor any Subsidiary shall have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident, or other calamity (whether or not insured) or from any court or governmental action, order, or decree; the effect of which on the Company or any Subsidiary, in any such case described in clause (c)(i) or (ii) above, is in the reasonable opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Preferred Securities on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(d) There shall have been furnished to the Representatives on the opinionClosing Date and the Option Closing Date, except as otherwise expressly provided below:
(i) An opinion of Malizia, Spidi & Fisch, X.X., counsel to xxx Company, dated as of the Closing Date and any Option Closing Date, in form and substance substantially in the form attached hereto as Exhibit A;
(ii) The favorable opinion, dated the Closing Date and the Option Closing Date, of ____________, counsel to the Trust Company and Trust Delaware, substantially in the form attached hereto as Exhibit B;
(iii) The favorable opinion, dated the Closing Date and the Option Closing Date, of Richards, Layton & Fingex, xxxxxxx Xxxxxare counsel to the Company and the Trust, substantially to the effect and in the form attached hereto as Exhibit C;
(iv) The favorable opinion, dated the Closing Date and the Option Closing Date, of Richards, Layton & Fingex, xxxxxxx Xxxxxare counsel to Trust Delaware, substantially to the effect and in the form attached hereto as Exhibit D; and
(v) The favorable opinion, dated the Closing Date and the Option Closing Date, of Thacher Proffitt & Wood, xxxxxxx xx xxx Unxxxxriters, as to such matters as the Representatives shall reasonably acceptable request. In rendering such opinions specified in clause (d)(ii), (iii), (iv) or (v) above, counsel may rely upon an opinion or opinions, each dated the Closing Date or the Option Closing Date as the case may be, of other counsel retained by them or the Company as to laws of any jurisdiction other than the United States or the State of New York, provided that (A) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Representatives, and (B) counsel shall state in their opinion that they believe that they and the letterUnderwriters are justified in relying thereon. Insofar as such opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, its Subsidiaries and the Trust and certificates of public officials.
(e) At the time this Agreement is executed and also on the Closing Date and the Option Closing Date, as the case may be, there shall be delivered to the Representatives a letter from Grant Thornton, LLP, xxx Xxxxxxx'x xndependent accountants, the first letter to be dated the date of this Agreement, the second letter to be dated the Closing Date, and the third letter to be dated the Option Closing Date, if any, which shall be in form and substance reasonably acceptable satisfactory to the Representatives, Representatives and shall contain information as of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for a date within five days of the Company, date of such letter. There shall not have been any change set forth in any letter referred to in this subsection (e) that makes it impracticable or such other counsel reasonably acceptable inadvisable in the judgment of the Representatives to proceed with the Representativespublic offering or purchase of the Preferred Securities as contemplated hereby.
(cf) The Representatives shall have received from Axxxxx & Bird LLP, counsel for On the Underwriters, such opinion or opinions, dated Closing Date and on the Option Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the President, a Vice Chairman of the Board or the President any Executive or any Senior Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date or the Option Closing Date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, Statement and this Agreement and that:
(i) The representations and warranties of the Company Offerors in this Agreement are true and correct in all material respects on and as of the Closing Date or the Option Closing Date, as the case may be, with the same effect as if made on the Closing Date or the Option Closing Date, as the case may be, and the Company has Offerors have complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be;
(ii) No The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued and issued; and, to the knowledge of the respective signatories, no proceedings proceeding for that purpose have has been instituted oror is pending or contemplated under the Securities Act;
(iii) Each of the respective signatories of the certificate has carefully examined the Registration Statement, the Prospectus, and any amendments or supplements thereto, and such documents contain all material statements and information required to be made therein, and neither the Registration Statement nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Company’s knowledgeRegistration Statement that has not been so set forth; provided, threatenedhowever, that no representation need be made as to information contained in or omitted from the Registration Statement or any amendment or supplement in reliance upon and in conformity with written information furnished to the Company and the Trust by or on behalf of any Underwriter through the Representatives; and
(iiiiv) Since the date of on which the most recent financial statements included in Registration Statement was initially filed with the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Commission, there has not been no any material adverse change or a development involving a prospective material adverse change in the condition (business, properties, financial condition, or other), earnings, business or properties earnings of the Company and its subsidiariesSubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given disclosed in the Registration Statement as heretofore amended or (exclusive but only if the Representatives expressly consent thereto in writing) as disclosed in an amendment or supplement thereto filed with the Commission and delivered to the Representatives after the execution of this Agreement; since such date and except as so disclosed or in the ordinary course of business, neither the Company nor any amendment thereof)Subsidiary has incurred any liability or obligation, direct or indirect, or entered into any transaction that is material to the Disclosure Package Company or such Subsidiary, as the case may be, not contemplated in the Prospectus; since such date and the Final Prospectus (exclusive of any supplement thereto), except as so disclosed there shall has not have been (i) any change in the outstanding capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included Company, or incorporated by reference any change that is material to the Company and its Subsidiaries taken as a whole in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated short-term debt or long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases Subsidiary; since such date and except as so disclosed, neither the Company nor any of its Subsidiaries have incurred any material contingent obligations, and no material litigation is pending or, to their knowledge, threatened against the Company or any Subsidiary; and, since such date and except as so disclosed, neither the Company nor any of its Subsidiaries have sustained any material loss or interference from any strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order, or decree.
(g) No downgrading in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income rating accorded any debt securities of the Company specified in by any "nationally recognized statistical rating organization" (as that term is defined by the letter or letters referred to in paragraph (eSecurities Exchange Commission for the purposes of Rule 436(g)(2) of this Section 5 (which letter or letters under the Securities Act) shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any changehave occurred, or any development involving a prospective change, in public announcement that any such organization has under surveillance or affecting the condition (financial or other), earnings, business or properties review their ratings of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and its subsidiaries no implication of a possible downgrading, of such rating), and if, in any such case, the effect of which in any case referred to in clause (i) or (ii) above, is, thereof in the reasonable judgment of the Representatives, so material and adverse as to make Representatives makes it impractical impracticable or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s CorporationPreferred Securities.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date and any Option Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably requestrequest in connection with the offering of the Preferred Securities. If any of the conditions condition specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not required to be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselfulfilled, this Agreement and all obligations of may be terminated by the Underwriters hereunder may be cancelled at, or by notice from the Representatives to the Company at any time prior towithout liability on the part of any Underwriter, including the Closing Date Representatives, or the Company, except for expenses to be paid by the Representatives. Notice of such cancellation shall be given Company pursuant to Section 7 hereof or reimbursed by the Company pursuant to Section 9 and except to the Company extent provided in writing or by telephone or facsimile confirmed in writingSection 11.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Shares shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of at the Execution Applicable Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Company has paid the fees required by the Commission relating to the Shares within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinionrequested and caused Wachtell, dated the Closing DateLipton, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx Xxxxx & Fxxx LLPXxxx, counsel for the Company, or such other counsel reasonably acceptable to furnish to the Representatives an opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives, to the effect set forth in Exhibit B hereto.
(c) The Company shall have requested and caused Xxxx Xxxxxxxxxx, Deputy General Counsel of the Company, to furnish to the Representatives an opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives, to the effect set forth in Exhibit C hereto and subject to usual and customary qualifications, limitations and assumptions.
(d) The Representatives shall have received from Axxxxx each of (i) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP and (ii) Xxxxx Xxxx & Bird LLPXxxxxxxx, counsel for to the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the IndentureShares, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Companycertificate, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, the Disclosure Package and any supplement amendments or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, supplements thereto and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherotherwise), earnings, business or properties of the Company and its the Company’s subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At On the Execution Time and date hereof, the Closing Date, Ernst & Young LLP Company shall have furnished requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of dated the Representatives), dated respectively as of the Execution Time and as of the Closing Date, date hereof in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning together with signed or reproduced copies of such letter for each of the Act other Underwriters, containing statements and information of the applicable rules and regulations thereunder and covering matters that are type ordinarily covered by included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided.
(g) On the Closing Date, howeverthe Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives a letter dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished on and dated as of pursuant to Section 6(f) hereof, except that the Closing Date specified date referred to shall use be a “cut-off” date no not more than three business days Business Days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any supplement thereto) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6; or (ii) any change, or any development involving a prospective change, in or affecting the business, properties, financial condition (financial or other), earnings, business or properties results of operations of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities Shares as contemplated by the Registration Statement (exclusive of any amendment thereofthereto), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(gi) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(hj) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and executive officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be full force and effect on the Closing Date.
(k) On or prior to the Closing Date, the Board of Governors of the Federal Reserve shall have approved the Company’s application to become a bank holding company under the Bank Holding Company Act of 1956, as amended.
(l) In the event that the several Underwriters exercise the option provided in Section 2(b) hereof to purchase all or any portion of the Option Shares, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received from received:
(i) A certificate, dated such Date of Delivery, signed by the principal financial or accounting officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(e) hereof remains true and correct as of such Date of Delivery.
(ii) An opinion of Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, in form and substance satisfactory to the Representatives Representatives, dated such Date of Delivery, relating to the Option Shares to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(b) hereof.
(iii) An opinion of Xxxx Xxxxxxxxxx, Deputy General Counsel of the Company, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Shares to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(c) hereof.
(iv) An opinion from each of (i) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel to the Underwriters, such opinion or opinions, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Closing Date, with respect Option Shares to compliance with be purchased on such Date of Delivery and otherwise to the laws of any country, other than same effect as the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersopinion required by Section 6(d) hereof.
(iv) If indicated in Schedule I hereto as being applicable A letter from PricewaterhouseCoopers LLP, dated such Date of Delivery, to the offering of any Securities, effect that they reaffirm the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth statements made in the Final Prospectusletter furnished pursuant to Section 6(g) hereof, except that the specified date referred to shall be a date not more than three Business Days prior to such Date of Delivery.
(jm) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date (or, if any Option Shares are purchased, at, or at any time prior to, each Date of Delivery) by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered pursuant to this Section 6 shall be delivered at the offices of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A or Rule 401(g)(2) under the Securities Act shall have been instituted or threatened. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act.
(b) The Company XxXxxxxxx Will & Xxxxx LLP, special counsel for the Company, shall have furnished to the Representatives Underwriters its written opinion addressed to the opinionUnderwriters, dated the Closing Date, in form and substance reasonably acceptable satisfactory to the RepresentativesRepresentative, and substantially in the letterform of Annex I hereto.
(c) Xxxxx Peabody LLP, counsel for the Issuers, shall have furnished to the Underwriters its written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably acceptable satisfactory to the RepresentativesRepresentative, substantially in the form of Skadden, Arps, Slate, Mxxxxxx & Fxxx Annex II hereto;
(d) DLA Piper US LLP, local counsel for one of the CompanyGuarantors, or such other counsel reasonably acceptable shall have furnished to the Representatives.Underwriters its written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representative, substantially in the form of Annex III hereto;
(ce) The Representatives Representative shall have received from Axxxxx Xxxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chairman Company’s Treasurer or an executive officer of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of Company with specific knowledge about the Company’s financial and operational matters reasonably satisfactory to the Representative, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show Electronic Road Show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company each Issuer in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or pursuant to Section 8A or Rule 401(g)(2) under the Securities Act has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of since August 31, 2015 there shall not have occurred any supplement thereto), there has been no material adverse change in the condition (financial event that would have a Material Adverse Effect or other), earnings, business or properties of the Company and its subsidiariesany development involving a prospective Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(eg) At The Company shall have requested and caused KPMG LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters letters, (which may refer to letters previously delivered to one or more of the RepresentativesUnderwriters), dated respectively as of the Execution Time and as of the Closing Date, in each case in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning Representative containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants “comfort letters” to underwriters with respect to the financial statements of the Company and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease beyond that reported in the capital stock (other than issuances paragraph 5(b) or 6 of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (eg) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined under Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(hj) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, FINRA has not raised any objection with respect to compliance with the laws fairness and reasonableness of any country, other than the United States, in whose currency Securities are denominated, underwriting terms and arrangements relating to the validity offering of the Securities.
(k) On the date hereof, the Prospectus and other related matters as they may require, and the Company shall have furnished to the Representative a certificate of the Company, signed by the Company’s Chief Financial Officer, in form and substance reasonably satisfactory to the Representative, to the effect that the signer of such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
certificate (i) If indicated has reviewed (x) the audited financial statements of Crown as of December 31, 2012 and 2011 and for each of the three years in Schedule I hereto the period ended December 31, 2012 (collectively, the “Crown Financials”) and (y) the carve-out combined financial statements of Piedras Negras Brewery Business as being applicable of December 31, 2012 and 2011 and as of January 1, 2011 and for the years ended December 31, 2012 and 2011 (collectively, the “Piedras Negras Brewery Business Financials”), both financials incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus and (ii) certifies that the Company has not become aware of any circumstances and there has not occurred any event known to the offering Chief Financial Officer of any Securities, the Representatives shall have received an opinion from tax counsel Company that would require a modification of the Crown Financials for them to be in accordance with GAAP or of the Company, satisfactory Piedras Negras Brewery Business Financials for them to the Representatives and dated be in accordance with IFRS. On the Closing Date, confirming their opinion as the Representative shall have received from the Chief Financial Officer of the Company a certificate dated such date in form and substance reasonably satisfactory to United States tax matters set forth the Representative, to the effect that he reaffirms in all material respects the statements made in the Final Prospectuscertificate furnished by him pursuant to the previous sentence of this subsection (k).
(jl) Prior to the Closing Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Representative and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx LLP counsel for the Underwriters, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Constellation Brands, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx caused: (i) Xxxxxx & Fxxx Xxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibits B-1 and B-2 hereto and (ii) Xxxxxx X. Xxxxxxxx, General Counsel for the Company, to have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibit C hereto. In rendering the foregoing opinions, such counsels may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(c) The Selling Stockholders shall have requested and caused Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for the Selling Stockholders, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibit D. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Selling Stockholders and public officials.
(d) The Representatives shall have received from Axxxxx & Bird Proskauer Rose LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and each Selling Stockholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of President and Chief Executive Officer and the Board or the President or any Senior Vice President and the principal financial or accounting officer or Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any amendment or supplement or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by an authorized signatory of such Selling Stockholder, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto and this Agreement and that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material adverse respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and in the form of Exhibit E hereto (except that, in any letter dated a Closing Date, the specified date referred to in Schedule V hereto shall be a date no more than three days prior to such Closing Date).
(h) [Reserved]
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gj) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jk) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A-1 hereto from each officer and director of the Company and letters substantially in the form of Exhibit A-2 hereto, from each Selling Stockholder named in Schedule I hereto, in each case addressed to the Representatives. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Proskauer Rose LLP, counsel for the Underwriters, at Eleven Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company Representatives shall have furnished to received (i) the Representatives opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, outside counsel for the opinionCompany, dated the Closing DateDate and addressed to the Representatives, to the effect as set forth on Exhibit A hereto, (ii) the opinion of Xxxxxx Xxxxxx Morandi, Esq., Chief Legal Officer of the Company, dated the Closing Date and addressed to the Representatives, to the effect set forth on Exhibit B hereto, and (iii) the opinion of Xxxxxxxx & Worcester LLP, special tax counsel for the Company, dated the Closing Date and addressed to the Representatives, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable satisfactory to the Representatives.
(c) The Representatives shall have received from Axxxxx Xxxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change in effect on the condition (financial or other), earningsbusiness, business properties or properties results of operation of the Company and its subsidiariesthe Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(e) At The Representatives shall have received from PricewaterhouseCoopers, LLP (US), at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or “comfort” letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, Date and each in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants’ “comfort letterscomfort” letters to underwriters with respect to the financial statements and certain financial information of the Company and its subsidiaries contained or incorporated by reference in each of the Registration Statement, Disclosure Package and the Final Prospectus, confirming that PricewaterhouseCoopers, LLP (US) is an independent registered accounting firm with respect to the Company and its subsidiaries within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission and the PCAOB; provided, however, provided that the “comfort” letter furnished delivered on and dated as of the Closing Date shall use a “cut-off” date no more than three business days two Business Days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) The Representatives shall have received from Ernst & Young LLP, at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date and each in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort” letters to underwriters with respect to the financial statements and certain financial information of the Acquired Business contained or incorporated by reference in each of the Disclosure Package and the Final Prospectus, confirming that Ernst & Young LLP are independent certified public accountants with respect to the Acquired Business under Rule 101 of the Code of Professional Conduct of AICPA, and its rulings and interpretations; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than two Business Days prior to the Closing Date.
(g) The Representatives shall have received from PricewaterhouseCoopers, LLP (UK), at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date and each in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort” letters to underwriters with respect to the financial statements and certain financial information of Telecity Group plc (“Telecity”) and its subsidiaries contained or incorporated by reference in each of the Disclosure Package and the Final Prospectus, confirming that PricewaterhouseCoopers, LLP (UK) are independent certified public accountants with respect to Telecity and its subsidiaries under Rule 101 of the Code of Professional Conduct of the AICPA, and its rulings and interpretations.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph paragraphs (e), (f) and (g) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) under the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet sheets contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinionrequested and caused Xxxxxx, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx Xxxxxxxxxx & Fxxx Xxxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Schedule V hereto.
(c) The Representatives shall have received from Axxxxx Skadden, Arps, Slate, Xxxxxxx & Bird Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or Board, the Chief Executive Officer, the President or any Senior Vice President and by the principal financial or accounting officer or Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to stating in effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Registration Statement, Disclosure Package the Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to March 31, 2013, nothing came to their attention which caused them to believe that, with respect to the period subsequent to March 31, 2013, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt or short-term borrowings of the Company and its subsidiaries or the capital stock of the Company or decreases in current assets or the shareholders’ equity of the Company, as compared with the amounts shown on the March 31, 2013 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus; provided, howeveror for the period from April 1, that 2013 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, income before income taxes or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter furnished on and dated shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Closing Date shall use a “cut-off” date no more than three business days prior Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Closing DateRegistration Statement, including the information set forth under the captions “Ratio of Earnings to Fixed Charges” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, and the information included or incorporated by reference in Items 1, 1A, 6, 7 and 7A of the Company’s Annual Report on Form 10-K and the information included in “Management’s Discussion and Analysis of Financial Conditions and Results of Operations” included in the Company’s Quarterly Report on Form 10-Q, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, change in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of PG&E Corporation’s or the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at Four Times Square, New York, New York, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers, Operating Partnership and the General Partner contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company Issuers, Operating Partnership and the General Partner made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers, Operating Partnership and the General Partner of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall will have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, Term Sheet and any other material required to be filed by the Company Issuers pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and and, to the knowledge of the Issuers, no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Issuers shall have requested and caused Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Issuers, the Operating Partnership and the General Partner, to have furnished to the Representatives the their opinion, dated the Closing DateDate and addressed to the Representatives, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the Representativesattached as Annex I hereto.
(c) The Representatives shall have received from Axxxxx Shearman & Bird Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company Issuers shall have furnished to the Representatives a certificate of the Companycertificate, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of Finance Corp. and the CompanyGeneral Partner, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company Issuers, Operating Partnership and the General Partner in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied Issuers, Operating Partnership and the General Partner have complied, in all material respects, with all the agreements and satisfied performed, in all material respects, all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s Issuers’ knowledge, threatened; and;
(iii) Since On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or any review (or of any potential or intended review) for a possible change that does not indicate the direction of the most recent financial statements included possible change in, any rating of the Issuers, the General Partner or the Operating Partnership or any securities of the Issuers, the General Partner or the Operating Partnership (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any nationally recognized statistical rating organization, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the Disclosure Package and the Final Prospectus (exclusive of outlook for any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties rating of the Company Issuers, the General Partner or the Operating Partnership or any securities of the Issuers, the General Partner or the Operating Partnership by any such rating organization and its subsidiaries, whether (iii) no such rating organization shall have given notice that it has assigned (or not arising from transactions in is considering assigning) a lower rating to the ordinary course of business, except as set forth in or contemplated in Securities than that on which the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Securities were marketed.
(e) At The Issuers shall have requested and caused PricewaterhouseCoopers LLP, an independent registered public accounting firm, to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change6, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent Since the dates as of which information is given in the Final Prospectus, other than as set forth in the Disclosure Package and the Final Prospectus (exclusive of any amendments or supplements thereto subsequent to the Execution Timedate of this Agreement)
(i) except for changes in accumulated other comprehensive income (loss) attributable to the Operating Partnership’s and the Partnership’s derivative instruments, there shall not have occurred any material adverse change in the partners’ capital or capital stock of either of the Issuers, the Operating Partnership or the General Partner, as the case may be, nor any material increase in the long-term debt of either of the Issuers, the Operating Partnership or the General Partner, (ii) there shall not have been any decrease material adverse change or development involving a prospective change in or affecting the financial condition, business, properties, results of operations or prospects of the Issuers and the Operating Partnership taken as a whole, the General Partner, and (iii) none of the Issuers, the General Partner or the Operating Partnership shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in this paragraph 6(g), in your judgment, is material and adverse and, in your judgment, makes it impracticable to market the Securities on the terms and in the ratings of any of manner contemplated in the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus Disclosure Package and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jh) Prior to the Closing Date, the Company Issuers shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) The Issuers and the Trustee shall have entered into the Indenture and you shall have received counterparts, conformed as executed, thereof. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or canceled at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Issuers in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company UCP Parties contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company UCP Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company UCP Parties of its their obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx caused Sidley Austin LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth on Exhibit C hereto.
(c) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company UCP Parties shall have each furnished to the Representatives a certificate of the Companysuch UCP Party, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer Chief Financial Officer of the Companysuch UCP Party, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any amendment or supplement or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company UCP Parties in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Companysuch officer’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives)letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference substantially in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated form attached as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.Exhibit D.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing Date, the Company UCP Parties shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from PICO and each officer, director, stockholder or other equityholder of the Company addressed to the Representatives.
(m) The UCP Parties shall have furnished, at the Execution Time and at the Closing Date, to the Representatives a certificate signed by the Chief Financial Officer of each of the UCP Parties, dated respectively as of the Execution Time and as of the Closing Date, substantially in the form of Exhibit E hereto. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (UCP, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Initial Sale Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder hereunder, and to the following additional conditions:
(a) The Registration Statement has become effective prior to Each Preliminary Final Prospectus that supplements the Execution Time; if filing of Basic Prospectus and the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Prospectus shall have been filed with the Commission Commission, in each case, within the applicable time periods period prescribed for such filings by Rule 433filing and in accordance with Section 5(a) hereof; and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission;
(b) The Company Representatives shall have furnished to the Representatives the opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx received from Xxxxxx & Fxxx Xxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable their opinion, dated the Closing Date and addressed to the Representatives., to the effect set forth in Annex I hereto;
(c) The Representatives shall have received from Axxxxx the General Counsel to the Company, his opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Annex II hereto;
(d) The Representatives shall have received from Milbank, Tweed, Xxxxxx & Bird XxXxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably require and request for the purpose of enabling them to pass upon such matters.;
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed in their representative capacities by the Chairman of the Board or the President or any Vice President Chief Executive Officer and the principal financial or accounting officer or Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any prospectus relating to the Securities has been issued and no proceedings for that purpose have been instituted orbeen, to the Company’s knowledge, threatenedinstituted or threatened by the Commission; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and Final Prospectus, as amended or supplemented prior to the Final Prospectus (exclusive of any supplement thereto)Execution Time, there has been no material adverse change in effect on the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and Final Prospectus, as amended or supplemented prior to the Final Prospectus (exclusive of any supplement thereto).Execution Time, or as described in such certificate;
(ef) At the Execution Time and the Closing Date, the Representatives shall have received from Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one dated such date or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Datedates, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning together with signed or reproduced copies of such letter or letters for each of the Act other Underwriters containing statements and information of the applicable rules and regulations thereunder and covering matters that are type ordinarily covered by 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 Final Prospectus, the Disclosure Package and the Final any Issuer Free Writing Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.;
(fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)as amended or supplemented prior to the Execution Time, the Disclosure Package and the Final Prospectus (exclusive of as amended or supplemented prior to the Execution Time or any supplement thereto)Issuer Free Writing Prospectus, there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus, as amended or supplemented prior to the Execution Time, the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (exclusive of and any supplement thereto).Issuer Free Writing Prospectus;
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.possible change; and
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselRepresentatives, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder. The documents required to be delivered by this Section 6 shall be delivered to the offices of Milbank, Tweed, Xxxxxx & XxXxxx LLP at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing Date or such other place as the Representatives shall so instruct.
Appears in 1 contract
Samples: Underwriting Agreement (Pioneer Natural Resources Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinionrequested and caused Xxxxxx, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx Xxxx & Fxxx Xxxxxxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to have furnished to the Representatives their opinion and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in each case in form and substance reasonably satisfactory to counsel for the Underwriters.
(c) The Selling Stockholder shall have requested and caused Proskauer Rose LLP, counsel for the Selling Stockholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to counsel for the Underwriters.
(d) The Representatives shall have received from Axxxxx Shearman & Bird Sterling LLP, counsel for the Underwriters, such their opinion or opinionsand negative assurance letter, each dated the Closing Date, with respect Date and addressed to the issuance Representatives, in each case in form and sale of substance satisfactory to the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably requireUnderwriters, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President Chief Executive Officer and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement amendments or amendments to the Final Prospectussupplements thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherotherwise), prospects, earnings, business or properties of the Company and its subsidiariesthe Subsidiary, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(ef) At the Execution Time and the Closing Date, Ernst & Young LLP The Selling Stockholder shall have furnished to the Representatives a letter certificate, signed by an officer of the Selling Stockholder, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendments or supplements thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date to the same effect as if made on the Closing Date and the Selling Stockholder has complied with all agreements and all conditions on its part to be performed under this Agreement at or prior to the Closing Date.
(g) The Company shall have requested and caused:
(i) BDO USA, LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are type ordinarily covered by included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus;
(ii) Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, 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 of Sundance contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus;
(iii) Xxxx Xxxxx LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, 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 of Sundance contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; providedand
(iv) PricewaterhouseCoopers LLP to have furnished to the Representatives, howeverat the Execution Time and at the Closing Date, that letters (which may refer to letters previously delivered to one or more of the letter Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the statements of revenues and direct operating expenses of the South Texas Rich Properties contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(h) The Company shall have requested and caused X.X. Xxxx and Associates, Inc. to have furnished on to the Representatives, at the Execution Time and at the Closing Date, letters, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in reserve engineers’ “comfort letters” to underwriters with respect to the reserve report contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(i) At the Execution Time and at the Closing Date, the Representatives shall have received from the Chief Financial Officer of the Company a certificate, dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to of this Agreement and the Closing Date. References , respectively, which shall contain statements and information of the type ordinarily included in a “CFO certificate” providing “management comfort” with request to certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus in this paragraph (e) include any supplement thereto at each case in form and substance reasonably satisfactory to counsel for the date of the letterUnderwriters.
(fj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company decrease specified in the letter or letters referred to in paragraph (eg) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries the Subsidiary taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jk) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(l) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) At the Execution Time, the Company shall have furnished to the Representatives a letter, substantially in the form of Exhibit A-2 hereto, from each person named in Schedule VI hereto addressed to the Representatives. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone telephone, or facsimile email confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, shall have furnished to the Representatives their opinions, dated the Closing Date and any settlement date and addressed to the Representatives, the forms of which are attached as Exhibit B and Exhibit C hereto.
(c) The General Counsel for the Company shall have furnished to the Representatives the his opinion, dated the Closing Date, in form Date and substance reasonably acceptable addressed to the Representatives, and substantially in the letter, dated the Closing Date, form set forth in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, or such other counsel reasonably acceptable to the RepresentativesExhibit B hereto.
(cd) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board Chief Executive Officer or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing DateDate and any settlement date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company set forth in this Agreement Section 1 hereof were true and correct on and as of the date hereof and are true and correct in all material respects as of the Closing Date or any settlement date with the same force and effect as though expressly made on and as of the Closing Date with the same effect as if made on the Closing Date and or any settlement date;
(ii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or any settlement date;
(iiiii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiiiv) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ef) At the Execution Time and the Closing Date, Ernst & Young SingerLewak LLP shall have furnished to the Representatives a letter or Representatives, at the Execution Time and at the Closing Date and any settlement date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations thereunder and covering matters adopted by the Commission thereunder, except that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that (i) the letter furnished on and dated as of the Closing Date or any settlement date shall use cover the financial information in the Final Prospectus and any amendment or supplement thereto and (ii) the procedures described therein shall be brought down to a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include Date or any supplement thereto at the date of the lettersettlement date.
(fg) The Company shall have furnished to the Representatives at the Closing Date and any settlement date, a certificate in the form attached as Exhibit E hereto of the Chief Financial Officer of the Company pertaining to the period subsequent to the quarter ended March 31, 2014.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change a Material Adverse Change, except as set forth in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)(2) under the Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to the Closing DateDate and any settlement date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company addressed to the Representatives.
(l) Any approval by the NASDAQ Stock Market required for the listing of the maximum number of shares of Common Stock for issuance upon conversion of the Securities (assuming physical settlement of all conversions and including any shares of Common Stock issuable in connection with a “make-whole adjustment event”, as such term is defined in the Indenture) shall have been obtained by the Company. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date or any settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters each Underwriter to purchase the Securities under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution date hereof, as of the date of the Time and of Sale Prospectus, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing DateDate with respect to such Securities (including the filing of any document incorporated by reference therein) and as of the Closing Date with respect to such Securities, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no No stop order suspending the effectiveness of the Registration Statement Statement, as amended from time to time or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened; all requests by the Commission for additional information shall have been complied with to the satisfaction of the Underwriters; and the Prospectus with respect to such Securities shall have been filed or transmitted for filing with the Commission pursuant to Rule 424(b) not later than the Commission’s close of business on the second day following the execution and delivery of this Agreement or, if applicable, such other time as may be required by Rule 424(b).
(b) The Company shall have furnished to the Representatives Underwriters the opinion of Xxxxxxx X. Xxxxxx, Xxx., Executive Vice President, General Counsel and Secretary of the Company, dated the Closing Date, in substantially the form attached hereto as Xxxxx X.
(c) The Underwriters shall have received (i) an opinion, dated the Closing Date, of Bass, Xxxxx & Xxxx PLC, counsel for the Company, in substantially the form and substance reasonably acceptable to the Representativesattached hereto as Annex II-A, and the (ii) a negative assurances letter, dated the Closing Date, in form and substance reasonably acceptable to the Representativesof Bass, of Skadden, Arps, Slate, Mxxxxxx Xxxxx & Fxxx LLPXxxx PLC, counsel for the Company, or such other counsel reasonably acceptable to in substantially the Representatives.form attached hereto as Annex II-B.
(cd) The Representatives Underwriters shall have received from Axxxxx Xxxxxxx Xxxxxxx & Bird Xxxxxxxx, LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure PackageTime of Sale Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may it reasonably request requests for the purpose of enabling them it to pass upon such matters.
(de) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chairman of the Board or Board, the Chief Executive Officer, an Executive Vice President or any a Senior Vice President and the principal financial or accounting officer or Treasurer treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageTime of Sale Prospectus, the Final Prospectus, any supplement or amendments to the Final Prospectus, as well as each electronic road show used in connection with the offering of the Securities, Prospectus and this Agreement and thatthat to the best of their knowledge after reasonable investigation:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on (except to the extent already qualified by materiality, in which case said representations, warranties and agreements shall be true and correct in all respects) as of the date hereof and as of the Closing Date Date, with the same effect as if made on the Closing Date Date, and the Company has complied with with, in all the material respects, all of its agreements and satisfied all the conditions on its part contained herein to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent latest audited financial statements included or incorporated by reference in the Disclosure Package Time of Sale Prospectus and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse change nor any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its consolidated subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in by the Disclosure Package Time of Sale Prospectus and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(ef) At the Execution Time time this Agreement is executed and at the Closing Date, Ernst Deloitte & Young LLP Touche, as independent accountants for the Company, shall have furnished to the Representatives Underwriters a letter or letters (which may refer to letters previously delivered to one or more of the RepresentativesUnderwriters), dated respectively as of the Execution Time and as of the Closing Datesuch date, in form and substance reasonably satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letterUnderwriters.
(fg) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package Time of Sale Prospectus and the Final Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been occurred (i) any change material adverse change, or any development involving a prospective material adverse change, in the capital stock (other than issuances of capital stock upon exercise of stock optionscondition, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included financial or incorporated by reference otherwise, or in the Registration Statementearnings, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt business or decreases in the consolidated net assets, net current assets or shareowners’ equity operations of the Company or any decreases and its subsidiaries, taken as a whole, from that set forth in the consolidated net operating revenues Time of Sale Prospectus or (ii) any material change or decrease in the total or per share amounts of income before extraordinary those items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (ef) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package Time of Sale Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. or Standard & Poor’s CorporationProspectus.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(i) On or after the Applicable Time and subsequent to the execution and delivery of this Agreement, and prior to the Closing Date there shall not have occurred any downgrading, nor shall notice have been given of any intended or potential downgrading or placement “under review” with negative implications or with no indication of the direction of the possible change of the rating accorded any securities of, or guaranteed by, the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters in accordance with the terms of this Agreement, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date Date, by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile telegraph confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Reinsurance Group of America Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have furnished to the Representatives the opinion, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx received from Xxxxxx Xxxxxxx Xxxxx LLP, counsel for the Company, or such other counsel their written opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives, in form and substance reasonably acceptable satisfactory to the Representatives.
(c) The Representatives shall have received from Axxxxx the General Counsel of the Company a written opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board Board, the Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President or the President or any Vice President Treasurer and by the principal financial or accounting officer or Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show Road Show used in connection with the offering of the Securities, and this Agreement and that:
(i) The i. the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No . no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since . since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(g) The Company shall have executed and delivered the Twenty-First Supplemental Indenture, in form and substance satisfactory to the Representatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of PG&E Corporation’s or the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws any notice given of any country, other than intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the United States, in whose currency Securities are denominated, the validity direction of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectuspossible change.
(j) Prior to or on the Closing Date, the Company shall have furnished to the Representatives evidence that the other conditions precedent to the issuance of the Securities set forth in Section 5.03 of the Base Indenture have been satisfied.
(k) Prior to or on the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered by physical or electronic means to the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (PG&E Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bi) The Company shall have furnished to the Representatives the opinion, dated the Closing Date, in form requested and substance reasonably acceptable to the Representatives, and the letter, dated the Closing Date, in form and substance reasonably acceptable to the Representatives, of Skadden, Arps, Slate, Mxxxxxx & Fxxx caused Xxxxx Xxxxxxx US LLP, counsel for the Company, or such other to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives in the form attached hereto as Exhibit A.
(ii) The Company shall have requested and caused Hogan Lovells US LLP, counsel reasonably acceptable for the Company, to have furnished to the Representatives their letter, dated the Closing Date and addressed to the Representatives., with respect to the content of the Disclosure Package and the Registration Statement in the form attached hereto as Exhibit B.
(iii) The Company shall have requested and caused X. Xxxxxx Xxxxxx III, Chief Legal Officer for the Company, to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in the form attached hereto as Exhibit C.
(c) The Representatives shall have received from Axxxxx Xxxxx Xxxx & Bird Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the SecuritiesNotes, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman President and Chief Executive Officer of the Board Company or the any Executive Vice President or any Senior Vice President President, and the principal financial Chief Financial Officer or accounting officer or Treasurer Chief Accounting Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show used in connection with the offering of the SecuritiesNotes, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements relating to the Company and its subsidiaries, and certain financial information contained or incorporated by reference in the Disclosure Package and Final Prospectus; provided, that the letters delivered on the date of this Agreement and on the Closing Date, as the case may be, shall use a “cut-off” date no more than three business days prior to the date of this Agreement or the Closing Date, as the case may be.
(f) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements relating to Covance and its subsidiaries, and certain financial information contained or incorporated by reference in the Disclosure Package and Final Prospectus; provided, that the letters delivered on the date of this Agreement and on the Closing Date, as the case may be, shall use a “cut-off” date no more than three business days prior to the date of this Agreement or the Closing Date, as the case may be.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiariessubsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (e) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities Notes as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gh) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(hi) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for a certificate of the Company, satisfactory to signed by the Representatives Chief Financial Officer of the Company, at the Execution Time and dated at the Closing Date, confirming their opinion dated respectively as to United States tax matters set forth of the Execution Time and as of the Closing Date, in the Final Prospectus.form attached hereto as Exhibit D.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date or as otherwise specified in Section 6.
Appears in 1 contract
Samples: Underwriting Agreement (Laboratory Corp of America Holdings)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplementsupplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A or Rule 401(g)(2) under the Securities Act shall have been instituted or threatened. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act.
(b) The Company XxXxxxxxx Will & Xxxxx LLP, special counsel for the Company, shall have furnished to the Representatives Underwriters its written opinion addressed to the opinionUnderwriters, dated the Closing Date, in form and substance reasonably acceptable satisfactory to the Representatives, and substantially in the letterform of Annex I hereto.
(c) Xxxxx Peabody LLP, counsel for the Issuers, shall have furnished to the Underwriters its written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably acceptable satisfactory to the Representatives, substantially in the form of Skadden, Arps, Slate, Mxxxxxx & Fxxx Annex II hereto;
(d) DLA Piper US LLP, local counsel for one of the CompanyGuarantors, or such other counsel shall have furnished to the Underwriters its written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably acceptable satisfactory to the Representatives., substantially in the form of Annex III hereto;
(ce) The Representatives shall have received from Axxxxx Xxxxxx Xxxxxx & Bird Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman Company’s Treasurer or an executive officer of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of Company with specific knowledge about the Company’s financial and operational matters reasonably satisfactory to the Representatives, dated the Closing Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, Prospectus and any supplement supplements or amendments to the Final Prospectusthereto, as well as each electronic road show Electronic Road Show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Company each Issuer in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or pursuant to Section 8A or Rule 401(g)(2) under the Securities Act has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) Since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of since February 28, 2017 there shall not have occurred any supplement thereto), there has been no material adverse change in the condition (financial event that would have a Material Adverse Effect or other), earnings, business or properties of the Company and its subsidiariesany development that would reasonably be expected to have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(eg) At The Company shall have requested and caused KPMG LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a letter or letters letters, (which may refer to letters previously delivered to one or more of the RepresentativesUnderwriters), dated respectively as of the Execution Time and as of the Closing Date, in each case in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning Representatives containing statements and information of the Act and the applicable rules and regulations thereunder and covering matters that are ordinarily covered by type customarily included in accountants “comfort letters” to underwriters with respect to the financial statements of the Company and certain financial information contained or incorporated by reference in the Registration Statement, Disclosure Package and the Final Prospectus; provided, however, that the letter furnished on and dated as of the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease beyond that reported in the capital stock (other than issuances paragraph 5(a) or 6 of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (eg) of this Section 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherotherwise), earnings, business or properties of the Company and its subsidiaries Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gi) Subsequent to the Execution Time, there shall not have been any decrease in the ratings rating of any of the Company’s debt securities by Mxxxx’x Investors Service, Inc. any “nationally recognized statistical rating organization” (as defined under Section 3(a)(62) of the Exchange Act) or Standard & Poor’s Corporationany notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(hj) The Representatives shall have received from counsel satisfactory to the Representatives such opinion or opinions, dated the Closing Date, FINRA has not raised any objection with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity fairness and reasonableness of the Securities, the Prospectus underwriting terms and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable arrangements relating to the offering of any the Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(jk) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counselcounsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx LLP counsel for the Underwriters, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Constellation Brands, Inc.)
