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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 by the Commission. (b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, 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 satisfactory to the Representatives. (c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letter, dated the Closing 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 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company contained 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 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 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 by the Commission; and (iii) since the date of the most recent consolidated financial statements 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 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 furnished to the Representatives a 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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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). (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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 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 supplement theretosuch 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 5(b4(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 threatened by the Commissionthreatened.
(b) The Company shall have requested furnished to the Representatives the opinion, dated the Closing Date, in form and caused Xxxxx Xxxx 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 & Xxxxxxxx Fxxx LLP, counsel for the Company, 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 or such other counsel reasonably satisfactory acceptable to the Representatives.
(c) The Representatives shall have received from Xxxxxx Axxxxx & Xxxxxxx Bird LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date and addressed to the RepresentativesDate, 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 shall 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 Treasurer Chairman of the Board or an Assistant 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 signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and Prospectus, any supplements supplement or amendments theretoto the Final Prospectus, as well as each electronic road show, if any, 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 by the Commissionthreatened; and
(iii) since Since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial 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) The Company At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a 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, 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, containing statements and information confirming that they are an independent registered public accounting firm within the meaning of the type customarily included in accountants’ 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 adverse changechange 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 any development involving a prospective material adverse changeincorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or affecting decreases in the businessconsolidated net assets, financial position net current assets or results of operations shareowners’ equity of the Company and its subsidiariesor 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, taken as a wholeincrease or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, except as set forth in or contemplated in 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 is in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)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).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating ratings of any of the Company’s debt securities by any “nationally recognized statistical rating organization” Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(as defined for purposes of Section 3(a)(62h) under The Representatives shall have received from counsel satisfactory to the Exchange Act) Representatives such opinion or any notice given opinions, dated the Closing Date, with respect to compliance with the laws of any intended or potential decrease country, other than the United States, in any such rating or of a possible change in any such rating that does not indicate whose currency Securities are denominated, the direction validity of the possible changeSecurities, 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 6 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 counsel for the Underwriterstheir 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. 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 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 by the Commission.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form set forth in Exhibits A-1 and substance reasonably satisfactory to the RepresentativesA-2, respectively.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 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 furnished to the Representatives a 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 and substance reasonably satisfactory to the Representatives.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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxxxxx000 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) (i) The Company and the KKR Selling Stockholder shall have requested and caused Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the CompanyCompany and KKR Selling Stockholder, to have furnished furnish to the Representatives their legal an opinion letter and negative assurance an advice letter, each dated the Closing Date and addressed to the Representatives in form and substance reasonably satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letter, dated the Closing 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 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Exhibit C hereto.
(e) The Company shall have furnished to the Representatives a 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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) (i) The Company and the KKR Selling Stockholder shall have requested and caused Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the CompanyCompany and the KKR Selling Stockholder, to have furnished furnish to the Representatives their legal an opinion letter and a negative assurance letter, each dated the Closing Date and addressed to the Representatives in form and substance reasonably satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letter, dated the Closing 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 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Exhibit B hereto.
(e) The Company shall have furnished to the Representatives a 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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 (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 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 supplement theretosuch 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 5(b4(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 threatened by the Commissionthreatened.
(b) The Company shall have requested furnished to the Representatives the opinion, dated the Closing Date, in form and caused Xxxxx 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, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Company, 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 or such other counsel reasonably satisfactory acceptable to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx Bird LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date and addressed to the RepresentativesDate, 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 shall 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 Treasurer Chairman of the Board or an Assistant 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 signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and Prospectus, any supplements supplement or amendments theretoto the Final Prospectus, as well as each electronic road show, if any, 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 by the Commissionthreatened; and
(iii) since Since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial 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) The Company At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a 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, 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, containing statements and information confirming that they are an independent registered public accounting firm within the meaning of the type customarily included in accountants’ 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 adverse changechange 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 any development involving a prospective material adverse changeincorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or affecting decreases in the businessconsolidated net assets, financial position net current assets or results of operations shareowners’ equity of the Company and its subsidiariesor 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, taken as a wholeincrease or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, except as set forth in or contemplated in 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 is in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)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).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating ratings of any of the Company’s debt securities by any “nationally recognized statistical rating organization” Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(as defined h) The Securities shall be eligible for purposes of Section 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 changeclearance 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, 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.
(k) 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.
(l) 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 6 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 counsel for the Underwritersits 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. 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 (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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Ropes & Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives Underwriters their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Underwriters, substantially in form and substance the forms reasonably satisfactory to the RepresentativesUnderwriters.
(c) The Representatives Underwriters shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal an opinion and negative assurance letteror opinions, dated the Closing Date and addressed to the RepresentativesUnderwriters, 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 shall 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 Treasurer Chief Executive Officer and the President, and the principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(iA) the representations and warranties of the Company contained 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 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 by the Commissionthreatened; and
(iiiC) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, 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) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the RepresentativesUnderwriters, at the Execution Time and at the Closing Date, 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, Underwriters containing statements and information of the type customarily ordinarily included in accountants’ accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package Registration Statement, the Preliminary Prospectus and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 (i) any material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Underwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Underwriters and counsel 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 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxx Xxx., Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Dxxxx Xxxx & Xxxxxxxx LLPWxxxxxxx, counsel for the Company, to have furnished furnish to the Representatives their legal Representative its opinion and negative assurance letter10b-5 statement, dated the Closing Date and addressed to the Representatives Representative, in substantially the form and substance reasonably satisfactory to the Representativesof Annex B hereto.
(c) The Representatives Company shall have received from Xxxxxx & Xxxxxxx LLPrequested and caused Jxxxxx X. Xxxx, in-house counsel for the UnderwritersCompany, such legal opinion and negative assurance letterto furnish to the Representative his opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, in substantially the form of Annex C hereto.
(d) The Representative shall have received from the firm listed in the underwriting agreement as counsel for the Underwriters, such opinion or opinions, dated the Closing Date 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 shall 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 Treasurer or an Assistant Treasurer Chief Executive Officer and (y) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and thatthat to the best of their knowledge:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse EffectEffect on the condition (financial or otherwise), 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).
(e) The Company shall have furnished to the Representatives a 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 At the Execution Time and at the Closing Date, letters (which may refer the Company shall have requested and caused Ernst & Young LLP to letters previously delivered furnish 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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letterRepresentative.
(g) 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) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 3(a)(62Rule 436(g) 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel 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 & Xxxxxxx LLP, the underwriters’ counsel for set forth in the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, 00000Underwriting 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP, outside counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, in the form agreed between such counsel and substance reasonably satisfactory to 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 Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(ef) The Company On the date of this Agreement and also on the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Companyletters, 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 respective dates of the Representatives), dated respectively as of the Execution Time and as of the Closing Datedelivery thereof, in form and substance satisfactory to the Representativesyou, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, (i) change to the capital stock (except for the issuance of options or the issuance or vesting of stock awards or restricted stock units pursuant to the Company’s equity incentive plans existing on the date hereof or any development involving a prospective material adverse changeshares issued pursuant to “earnout” provisions in any completed acquisition by the Company, in and except for repurchases of common stock pursuant to the Company’s previously announced common stock repurchase authorization) or affecting the business, financial position or results of operations long-term debt of the Company and its subsidiariesor any Material Adverse Effect, taken as a whole, except otherwise than as set forth in or contemplated in the Disclosure Package and the Final Prospectus or (exclusive ii) the suspension or material limitation of any amendment or supplement thereto) trading in the capital stock of the Company on The Nasdaq Global Select Market, the effect of which is in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof), so material and adverse as to make 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).
(h) 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 rating accorded any securities of any of or guaranteed by the Company’s debt securities Company by any “nationally recognized statistical rating organization” (as such term is defined for purposes of in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change).
(i) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xx Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XXXxxxx 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 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxx & Xxxxxxxx (New York) LLP, special Xxxxxxxx Islands counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letterwritten opinion, dated the Closing 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 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 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 furnished to the Representatives a 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 , substantially 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 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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.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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal 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 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 & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing 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 such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements 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 Effectmaterial adverse effect on the condition (financial or otherwise), 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) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, 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, containing statements and information of the type customarily ordinarily 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 Disclosure Package Registration Statement and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the such 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)Time, there shall not have been (i) any material adverse 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 reasonably foreseeable prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, XX, 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:
(a) The Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, in substantially the form and substance reasonably satisfactory to the Representatives.attached hereto as Exhibit A.
(c) The Representatives shall have received from 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 & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements 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 Effectmaterial adverse effect on the condition (financial or otherwise), 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) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, 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, containing statements and information of the type customarily ordinarily 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 Disclosure Package Registration Statement and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the such 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)Time, there shall not have been (i) any material adverse 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 reasonably foreseeable prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 3(a)(62Rule 436(g) 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, XX, 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 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 Canadian Final Prospectus, and any supplement thereto, 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 5(b5(a) hereto hereof, 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 filing by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use 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 by the Commission.Commission or the Reviewing Authority;
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, United States special counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteropinion, dated the Closing 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 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations statements in the Disclosure Package and warranties the U.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, 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 this Agreement are true the Disclosure Package and correct on 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 Closing Date 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 same effect requirements of Alberta Securities Laws, as if made on interpreted and applied by the Closing Date and Alberta Securities Commission. Such counsel understands that such matters are covered in the Company has complied with all the agreements and satisfied all the conditions on its part opinion of Xxxxxx XxXxxx LLP to be performed or satisfied at or prior to furnished on the Closing Date;
(iiv) no stop order suspending this Agreement (to the effectiveness extent execution and delivery are governed by the laws of New York) has been duly executed and delivered by the Company;
(vi) the Company is not and, after giving effect to the offering and sale of the Registration Statement or any notice objecting to its use has been issued Securities, and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened by the Commission; and
(iii) since the date application of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference their proceeds as described in the Disclosure Package and the U.S. Final Prospectus (exclusive under the heading “Use of any supplement thereto)Proceeds,” will not be required to be registered as an investment company under the Investment Company Act of 1940, there has been no Material Adverse Effectas amended, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive rules and regulations of any supplement thereto).the Commission promulgated thereunder;
(evii) The Company shall have furnished to the Representatives a certificate issuance and sale of the Company related to certain litigation disclosures, signed Securities by the General Counsel of the Company, dated the Closing Dateexecution and delivery by the Company of the 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 United States of America and the State of New York (“Applicable Law”), in form and substance reasonably satisfactory each case which in such counsel’s experience are normally applicable 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, containing statements and information transactions of the type customarily included contemplated by the Underwriting Agreement or any judgment, order or decree of any New York or federal court or Governmental Authority binding upon the Company listed on Schedule II to such counsel’s opinion, except in accountants’ “comfort letters” to underwriters the case of clause (A) above, such counsel expresses no opinion with respect to any provision of any agreement, indenture or instrument listed on Schedule I to such counsel’s opinion to the financial statements extent that an opinion with respect to such provision would require making any financial, accounting or mathematical calculation or determination, and certain financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph case of clauses (f) include 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 thereofA) and (B) above, where the Final Prospectus (exclusive of any amendment breach, default or supplement thereto), there shall violation could not reasonably be expected to have been any a material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or results of operations of effect on 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 amendment or supplement thereto) the effect of which is in the reasonable judgment . For purposes of the Representatives opinion, the term “Applicable Law” does not include federal securities laws (other than except for purposes of the opinions expressed in paragraph ix below) or state securities laws, anti-fraud laws, or any 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 defaulting Underwriter regulatory 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, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made is required by the Company under Section 9 hereof), so material any Applicable Law for the issuance and adverse as to make it impractical or inadvisable to proceed with the offering or delivery sale of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Company, the Disclosure Package execution and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities delivery 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 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all 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. 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.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 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule V hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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, or for the period from October 1, 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of PG&E Corporation’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by or, to the CommissionCompany’s knowledge, threatened.
(b) The Company shall have requested and caused Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished furnish to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives in form and substance reasonably satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letterits opinion, dated the Closing Date and addressed to the Representatives, with respect 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 issuance 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 sale of addressed to the SecuritiesRepresentatives, substantially in the Indentureform set forth in Exhibit B hereto.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx, counsel for the Registration StatementUnderwriters, such opinion or opinions, dated the Disclosure Package, Closing Date and addressed to 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 shall 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 Treasurer Chief Executive Officer and (y) the principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendments or supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, 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, incorporated by reference in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(e) The Company shall have furnished to the Representatives a 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 At the Execution Time and at the Closing Date, letters (which may refer the Company shall have requested and caused Ernst & Young LLP to letters previously delivered furnish to one or more of the Representatives)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 the a type customarily 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. References to the Final Prospectus in this paragraph (f) include 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 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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) 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 rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(ij) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 will be delivered at the office offices of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto hereto, and any other material required to be filed by the Company Partnership 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 by the Commissionthreatened.
(b) The Company Partnership shall have requested and caused Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLPXxxxxx L.L.P., counsel for the CompanyPartnership, to have furnished to the Representatives their legal opinion and negative assurance letterits opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit A.
(c) The Partnership shall have requested and caused the Vice President, Deputy General Counsel, Secretary, and Chief Ethics & Compliance Officer of the General Partner to have furnished to the Representatives in form his opinion, dated the Closing Date and substance reasonably satisfactory addressed to the Representatives., substantially in the form attached hereto as Exhibit B.
(cd) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 Partnership shall have furnished to such counsel such documents as they shall 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 Treasurer or an Assistant Treasurer Chief Financial Officer of the CompanyGeneral Partner, dated the Closing Date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained Partnership 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no 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).
(e) The Company shall have furnished to the Representatives a 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 Partnership shall have requested and caused PricewaterhouseCoopers LLP Deloitte & Touche LLP, independent public accountants of the Partnership, to have furnished to the Representatives, at the Execution Time and at the Closing Date, 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, containing statements and information of which letters shall cover, without limitation, the type customarily included various financial disclosures contained in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus. References ; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the such 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 (i) any material adverse 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 material adverse change, in or affecting the condition (financial or otherwise), earnings, business, financial position properties or results of operations of the Company Partnership 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the CompanyPartnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, 00000, on the Closing Date.
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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxxxxx & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, and in-house counsel of the Company to have furnished furnish to the Representatives their legal opinion and negative assurance letteropinions, dated the Closing Date and addressed to the Representatives Representatives, in form substantially the forms of Exhibits A and substance reasonably 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 RepresentativesUnderwriters 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 Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 and in their capacity as such (x) the Treasurer Chairman of the Board or an Assistant Treasurer the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect, and no development involving a prospective change which would have a material adverse effect, on the condition (financial or otherwise), 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) The Company shall have furnished to the Representatives a 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 At the Execution Time and at the Closing Date, letters (which may refer the Company shall have requested and caused Deloitte & Touche LLP to letters previously delivered furnish to one or more of the Representatives)Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in the form and substance satisfactory to attached as Exhibit C hereto confirming that they are independent accountants within the Representatives, containing statements and information meaning 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 Disclosure Package Exchange Act and the Final Prospectusapplicable published rules and regulations thereunder. References therein to the Final Prospectus in this paragraph (f) shall also include any supplement thereto at the date of the letter.
(gf) 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 thereofor supplement thereto) and the Final Prospectus (exclusive of any amendment or supplement thereto), as the case may be, there shall not have been (i) any material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) 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 such term is defined for purposes by the Commission in Rule 15c3-1(c)(2)(vi)(F) of Section 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.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule V hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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, or for the period from July 1, 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of PG&E Corporation’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) (i) The Company and the Selling Stockholder shall have requested and caused Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the CompanyCompany and the Selling Stockholder, to have furnished furnish to the Representatives their legal an opinion letter and negative assurance an advice letter, each dated the Closing Date and addressed to the Representatives in form and substance reasonably satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letter, dated the Closing 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 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Exhibit B hereto.
(e) The Company shall have furnished to the Representatives a 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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule V hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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, or for the period from [—], 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of PG&E Corporation’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives 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 substance reasonably 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 RepresentativesUnderwriters 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 Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date 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 shall 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, Electronic Road Show used in connection with the offering of the SecuritiesNotes, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), 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) The Company shall have furnished to the Representatives a 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 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, containing statements and information of the 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 Disclosure Package Registration Statement, Preliminary Prospectus and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 (i) any material adverse change 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(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 Xxxxx’x Investors Service, Inc. or Standard & Poor’s, a division of Section 3(a)(62) under the Exchange Act) XxXxxx-Xxxx Companies, Inc., or any notice given from these entities of any intended or potential a pending decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changerating.
(i) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xx Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XXXxxxx 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal 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 Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date 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 shall 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 Treasurer or an Assistant Treasurer Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained in this Agreement that are not qualified by materiality are true and correct in all material 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference 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 Effectmaterial adverse effect on the business, properties, management, financial position, shareholders’ equity, results of operations or prospects 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 theretothereto that has not been made part of the Disclosure Package).
(eh) The Company shall have furnished to the Representatives a 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[Reserved].
(fi) The Company shall have requested and caused PricewaterhouseCoopers Ernst & Young LLP to have furnished to the Representatives, Representatives at the Execution Time a letter dated as of the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives)a letter, dated respectively as of the Execution Time and as of the Closing Date, 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 audited and unaudited financial statements and certain financial information contained or incorporated by reference in the Disclosure Package Preliminary Prospectus, the Prospectus and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letterRegistration Statement.
(gj) 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 theretothereto that has not been made part of the Disclosure Package), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position position, shareholders’ equity or results of operations of the Company and its subsidiaries, subsidiaries taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement theretothereto that has not been made part of the Disclosure Package) the effect of which is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or 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).
(hk) 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 in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(il) [Reserved].
(m) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx furnished to the Representatives:
(i) an opinion of Wxxx, Gotshal & Xxxxxxxx Mxxxxx LLP, counsel for to the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably satisfactory to the Representatives; and
(ii) a letter of Wxxx, Gotshal & Mxxxxx LLP, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx Dxxxx Xxxx & Xxxxxxx Wxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), 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) The At or prior to the Closing Date, the Company shall have furnished executed and delivered to the Representatives a Underwriters an officers’ certificate pursuant to Section 3.01 of the Company related to certain litigation disclosures, signed by the General Counsel of the Company, dated the Closing DateIndenture, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, 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 to have furnished to the Representatives, at the Execution 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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(gh) 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) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any material adverse change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution TimeTime of Sale, 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 in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Weil, Gotshal & Xxxxxxx Mxxxxx LLP, counsel for the UnderwritersCompany, at 0000 Xxxxxx xx xxx Xxxxxxxx700 Xxxxx Xxxxxx, Xxx Xxxx, XX, 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, General Counsel to the Company to have furnished to the Representatives their legal opinion and negative assurance letterhis opinion, dated the Closing Date 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 satisfactory to the Representatives.
(cd) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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) 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 by the Commissionthreatened; and
(iiiiv) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(ef) The Company On the date hereof, the Representatives shall have furnished to the Representatives a certificate of the Company related to certain litigation disclosuresreceived from PricewaterhouseCoopers LLP, signed by the General Counsel of independent registered public accountants for the Company, a letter dated the Closing Datedate hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the RepresentativesRepresentatives with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(fg) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at On the Closing Date, letters (which may refer to letters previously delivered to one the Representatives shall have received from PricewaterhouseCoopers LLP, independent public or more of certified public accountants for the Representatives)Company, a letter dated respectively as of the Execution Time and as of the Closing Datesuch 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 effect that they reaffirm the statements and certain financial information contained or incorporated by reference made in the Disclosure Package and letter furnished by them pursuant to subsection (b) of this Section 5, except that the Final Prospectus. References specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letterClosing Date.
(gh) 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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(ij) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx LLPXxxxxxxx LLP , counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) The Company Representative shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letterreceived such opinions, dated the Closing Date and addressed to the Representatives in form and substance reasonably satisfactory Representative, of (a) Xxxxx Xxxx & Xxxxxxxx LLP, outside counsel for the Company, 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 Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date and addressed to the RepresentativesRepresentative, 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 shall 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)) , there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or other), business, properties or results of operation of the Company and the 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) The Company Representative shall have furnished to the Representatives a 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 received from PricewaterhouseCoopers LLP to have furnished to the RepresentativesLLP, at the Execution Time and at the Closing Date, “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, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters confirming that they are an independent registered accounting firm with respect to the financial statements Company within the meaning of the Act and certain financial information contained or incorporated the Exchange Act and the respective applicable rules and regulations adopted by reference the Commission and the PCAOB substantially in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date form of the letterExhibit D hereto.
(gf) 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 material adverse change or decrease specified in the letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or 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).
(hg) 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 such term is defined for purposes of in Section 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.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel 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 0000 Xxxxxx xx xxx Xxxxxxxx00 Xxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement 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 5(b) hereto hereto, and any other material required to be filed by the Company and Guarantors 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel for the CompanyCompany and the Guarantors, to have furnished to the Representatives their legal opinion and negative assurance letterits opinion, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably 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 Xxxxxx Shearman & Xxxxxxx Sterling LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 shall 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 their respective Chief Executive Officer, President or a Vice President and the Treasurer or an Assistant Treasurer of the CompanyChief Financial Officer, dated the Closing Date, to the effect that the signer signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure PackageFinal Prospectus, the Final Prospectus Disclosure Package and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, thereto and this Agreement and that:
(i) the representations and warranties of the Company contained Issuers in Section 1 of 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus, 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).
(e) The Company shall have furnished to the Representatives a 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 RepresentativesProspectus.
(f) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Applicable Time and at the Closing Date, 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, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the certain unaudited financial statements and certain financial information contained or incorporated by reference in the Disclosure Package Registration Statement, the Preliminary Prospectus used most recently prior to the Applicable Time and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) 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 or supplement thereto), there shall not have been (i) any material 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 material adverse change, in or affecting the business, financial position or 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 amendment or supplement thereto) ), the effect of which is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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 amendment or supplement thereto)Prospectus.
(h) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the Company’s or the Guarantors’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxxx Shearman & Xxxxxxx Sterling, LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 Company, of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, substantially in form the forms set forth in Exhibits A-1 and substance reasonably satisfactory to the RepresentativesA-2 hereto.
(c) The Company shall have requested and caused Xxxxxxx Xxxxxx PC, counsel for the Company, to have furnished to the Representatives their opinion letter, 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 Xxxxxx Ropes & Xxxxxxx Gray LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 shall 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 Treasurer or an Assistant Treasurer Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained in this Agreement that are not qualified by materiality are true and correct in all material 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference 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 Effectmaterial adverse effect on the business, properties, management, financial position, shareholders’ equity, results of operations or prospects 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 theretothereto that has not been made part of the Disclosure Package).
(eh) The Company shall have furnished to the Representatives a 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[Reserved].
(fi) The Company shall have requested and caused PricewaterhouseCoopers Ernst & Young LLP to have furnished to the Representatives, Representatives at the Execution Time a letter dated as of the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives)a letter, dated respectively as of the Execution Time and as of the Closing Date, 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 audited and unaudited financial statements and certain financial information contained or incorporated by reference in the Disclosure Package Preliminary Prospectus, the Prospectus and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letterRegistration Statement.
(gj) 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 theretothereto that has not been made part of the Disclosure Package), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position position, shareholders’ equity or results of operations of the Company and its subsidiaries, subsidiaries taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement theretothereto that has not been made part of the Disclosure Package) the effect of which is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or 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).
(hk) 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 in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(il) [Reserved].
(m) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Ropes & Xxxxxxx Gray LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, 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 Final Prospectus, and any supplement 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 5(b) hereto hereof 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxx X. Xxxxx, Executive Vice President, General Counsel and Secretary of the Company, to have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Representatives to the effect set forth in Annex B attached hereto.
(c) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx Lardner LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives in form and substance reasonably satisfactory Representatives, to the Representativeseffect set forth in Annex C attached hereto.
(d) In rendering the opinions described in paragraph (b) or (c) of this Section 6, such counsel (A) need not express any opinion as to matters involving the application of laws of any jurisdiction other than the State of New York, the State of Wisconsin or the Federal laws of the United States, and (B) may rely 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 Annex B and Annex C shall also include any supplements thereto at the Closing Date.
(e) The Representatives shall have received from Xxxxxx & Xxxxxxx Sidley Austin LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 shall 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 Treasurer President and the principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained in this Agreement are true and correct on and as of the Closing Date (or such other date as specified in such representation or warranty) 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), results of operation, business or properties of the Company and its subsidiaries considered as one enterprise, 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) The Company shall have furnished to the Representatives a 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.
(fg) The Company shall have requested and caused PricewaterhouseCoopers Ernst & Young 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)a letter, dated respectively as of the Execution Time and as of the Closing Date, in form Date confirming that they are independent accountants within the meaning of the Act and substance satisfactory to the Representatives, containing statements Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the type customarily included Company for the nine-month period ended September 28, 2008, and as at September 28, 2008, in accountants’ “comfort letters” to underwriters accordance with respect to the financial statements Statement on Auditing Standards No. 100, and certain financial information contained or incorporated by reference substantially in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.form attached hereto as Annex D.
(gh) 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) and the Final Prospectus (exclusive of any amendment or supplement thereto)) and prior to the Closing Date, there shall not have been (i) any material adverse change or decrease specified in the letter referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position or results of operations operation, business or properties of the Company and its subsidiariessubsidiaries considered as one enterprise, taken as a wholewhether 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution TimeTime of Sale and prior to the Closing Date, there shall not have been any decrease in the rating of the Company by any of the Company’s debt securities by any following “nationally recognized statistical rating organizationorganizations” (as defined for purposes of Section 3(a)(62Rule 436(g) under the Exchange Act), such that the rating from Xxxxx’x Investors Services falls below Baa3 (the “Moody’s Specified Rating”), the rating from Fitch Ratings falls below BBB- (the “Fitch Specified Rating”) or the rating from Standard & Poor’s Rating Service falls below BBB- (the “S&P Specified Rating,” and together with the Moody’s Specified Rating and the Fitch Specified Rating, the “Specified Ratings”), or any written notice given of any intended or potential intention to decrease in any such the rating or of the Company to a possible change in any such rating that does not indicate the direction is below any of the possible changeSpecified Ratings.
(ij) Prior Subsequent to the Time of Sale and 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxx & Xxxxxxx LLP, counsel for the UnderwritersCompany, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxx Xxxxxxxxx Xxxxxx, Xxx XxxxXxxxxxxxx, XX, Xxxxxxxxx 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx furnished to the Representatives the written opinion of K&L Gates LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Underwriters, in the form and substance reasonably satisfactory to the Representatives.attached hereto as Exhibit A.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLPXxxxx Xxxxx LLP , counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse EffectChange, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company Representatives shall have furnished to received on the Representatives date hereof a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Companyletter, 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 Datedate hereof, in form and substance satisfactory to the Representatives, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and information of the type customarily 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 into the Disclosure Package Registration Statement and the Final Prospectus. References On the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, independent public accountants, a letter dated the Closing Date to the Final Prospectus effect that they reaffirm the statements made in the letter specified in the first and second sentences of this paragraph (f) include any supplement thereto at the date of the lettere).
(gf) 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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position prospects, earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(ih) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably requestrequest in order to evidence or confirm the accuracy of the Company’s representations and warranties set forth herein, the performance by the Company of its obligations hereunder to be performed at or before the Closing Date, and the fulfillment of the conditions set forth herein. If any of the conditions specified in this Section 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 counsel 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 & Xxxxxxx Xxxxx Xxxxx LLP, counsel for the Underwriters, at 0000 00 Xxxxx Xxxxxx xx xxx XxxxxxxxXxxxx, Xxx XxxxChicago, XX, 00000Illinois 60606, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Coca Cola Bottling Co Consolidated /De/)
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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 proceeding against the Company or in connection with the offering of the Securities for that such purpose under Rule 401(g)(2) and Section 8A under the Securities Act shall have been instituted be pending before or threatened by the Commission.
(b) The Company McGuireWoods LLP, counsel for the Company, shall have requested furnished to the Representatives their written opinion and caused Xxxxx Xxxx negative assurance letter, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially to the effect set forth in Annex A hereto.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the CompanyUnderwriters, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letter, dated the Closing 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at hereunder on or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings proceeding against the Company or in connection with the offering of the Securities for that such purpose have been instituted or, to under Rule 401(g)(2) and Section 8A under the Company’s knowledge, Securities Act shall be pending before or threatened by the Commission; and;
(iii) since subsequent to the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference contained in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement theretothereto or document incorporated by reference therein), (i) there has been no Material Adverse Effectchange in the capital stock or long-term debt of the Company or any of its Subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change in the condition (financial or otherwise), 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; (ii) neither the Company nor any of its Subsidiaries has entered into any transaction, incurred any liability or obligation, direct or contingent, where such transaction, liability or obligation is material, either individually or in the aggregate, to the Company and its Subsidiaries taken as a whole; and (iii) neither the Company nor any of its Subsidiaries has sustained any loss or interference with its business from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, where such occurrence or event is material, either individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except in each case as set forth in or contemplated otherwise disclosed in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement theretothereto or document incorporated by reference therein); and
(iv) subsequent to the execution and delivery of this Agreement (i) no downgrading has occurred in the rating accorded the Securities or any of the Company’s other debt securities or preferred stock by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of the Commission under the Act and (ii) no such organization has publicly announced or notified the Company that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or any of the Company’s other debt securities or preferred stock (other than an announcement with positive implications of a possible upgrading).
(e) The Company shall have furnished to the Representatives Underwriters a certificate letter (the “Initial Letter”) of Ernst & Young, addressed to the Company related to certain litigation disclosures, signed by the General Counsel of the Company, Underwriters and dated the Closing Datedate hereof, with respect to the Registration Statement and the Disclosure Package, in form and substance reasonably satisfactory in all material respects to the RepresentativesRepresentatives and counsel for the Underwriters, substantially to the effect set forth in Annex B hereto.
(f) The Company shall have requested furnished to the Underwriters a letter (the “Bring-Down Letter”) of Ernst & Young, addressed to the Underwriters and caused PricewaterhouseCoopers LLP dated the Closing Date, with respect to the Registration Statement and the Final Prospectus, (A) confirming that they are independent public accountants with respect to the Company and its Subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder, (B) stating, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Final Prospectus, as of a date not more than three business days prior to the date of the Bring-Down Letter), that the conclusions and findings of such accountants with respect to the financial information and other matters covered by the Initial Letter are accurate and (C) confirming in all material respects the conclusions and findings set forth in the Initial Letter.
(g) The Company shall have furnished to the RepresentativesUnderwriters a letter (the “PSF Initial Letter”) of Deloitte, at addressed to the Execution Time Underwriters and at dated the Closing Datedate hereof, letters (which may refer with respect to letters previously delivered to one or more of the Representatives), dated respectively as of Registration Statement and the Execution Time and as of the Closing DateDisclosure Package, in form and substance reasonably satisfactory in all material respects to the RepresentativesRepresentatives and counsel for the Underwriters, containing statements substantially to the effect set forth in Annex C hereto.
(h) The Company shall have furnished to the Underwriters a letter (the “PSF Bring-Down Letter”) of Deloitte, with respect to the Registration Statement and information the Final Prospectus, addressed to the Underwriters and dated the Closing Date, with respect to the Final Prospectus, (A) confirming that they are independent public accountants with respect to PSF and its subsidiaries within the meaning of Rule 101 of the type customarily included Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder, (B) stating, as of the date of the PSF Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in accountants’ “comfort letters” the Final Prospectus, as of a date not more than three business days prior to underwriters the date of the PSF Bring-Down Letter), that the conclusions and findings of such accountants with respect to the financial statements information and certain financial information contained or incorporated other matters covered by reference the PSF Initial Letter are accurate and (C) confirming in all material respects the conclusions and findings set forth in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letterPSF Initial Letter.
(gi) 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) Disclosure Package and the Final Prospectus (in each case exclusive of any amendment or supplement theretothereto or document incorporated by reference therein), (i) there shall not have been any material adverse changechange in the capital stock or long-term debt of the Company or any of its Subsidiaries, or any development involving a prospective dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or any material adverse changechange in the condition (financial or otherwise), in prospects, earnings, business or affecting the business, financial position or results of operations properties of the Company and its subsidiariesSubsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business; (ii) neither the Company nor any of its Subsidiaries has entered into any transaction, incurred any liability or obligation, direct or contingent, where such transaction, liability or obligation is material, either individually or in the aggregate, to the Company and its Subsidiaries taken as a whole; and (iii) neither the Company nor any of its Subsidiaries has sustained any loss or interference with its business from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, where such occurrence or event is material, either individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except in each case as set forth in or contemplated otherwise disclosed in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) ), the effect of which is which, in any such case described above, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof), so material and adverse as to make makes it impractical impracticable or inadvisable to proceed with the offering offering, sale or delivery of the Securities as securities on the terms and in the manner contemplated by the Registration Statement (exclusive of any amendment thereof), this Agreement and the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement theretothereto or document incorporated by reference therein).
(hj) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Securities.
(k) Subsequent to the Execution Time, there Time (i) no downgrading shall not have been any decrease occurred in the rating of accorded any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (”, as such term is defined by the Commission for purposes of Section 3(a)(62Rule 436(g)(2) of the rules and regulations of the Commission under the Exchange ActAct and (ii) no such organization shall have publicly announced or any notice given have notified the Company that it has under surveillance or review, or has changed its outlook with respect to, its rating of any intended of the Company’s other debt securities or potential decrease in any such rating or preferred stock (other than an announcement with positive implications of a possible change in any such rating that does not indicate the direction of the possible changeupgrading).
(il) The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and its significant subsidiaries, as defined pursuant to Rule 1-02(w) of Regulation S-X, in their respective jurisdictions of organization and their good standing in the other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(m) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule V hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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 December 31, 2008, nothing came to their attention which caused them to believe that, with respect to the period subsequent to December 31, 2008, 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 December 31, 2008 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from January 1, 2009 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, net 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration 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, 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or Pacific Gas and Electric Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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 changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New York, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 Rule 401(g)(2) or pursuant to Section 8A under the Act shall have been instituted or threatened by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives in the form and substance reasonably satisfactory to the Representatives.attached hereto as Exhibit A.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx Tarrant Sibley, Esq., Senior Vice President and Deputy General Counsel of the Company, his opinion, dated the Closing Date and addressed to the Representatives in the form attached hereto as Exhibit B.
(d) The Representatives shall have received from Xxxxx Xxxxx LLP, counsel for the Underwriters, such legal opinion and or opinions, including a negative assurance letterstatement, dated the Closing 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 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 Treasurer principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (in each case, 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 (in each case, exclusive of any amendment or supplement thereto).
(ef) The At the date hereof and at the Closing Date, the Company shall have furnished requested and caused KPMG LLP to furnish to the Representatives a certificate Underwriters letters, dated respectively as of the Company related to certain litigation disclosures, signed by the General Counsel date hereof and as 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, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters Underwriters with respect to the audited and unaudited financial statements and certain financial information contained or incorporated by reference in the Disclosure Package Registration Statement, the Preliminary Prospectus and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 thereofthereto) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse 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 reasonably likely to result in a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 (in each case, exclusive of any amendment or supplement thereto) the effect of which is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Final Prospectus (in each case, exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Applicable 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 in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changechange (other than a notice with positive implications of a possible upgrading).
(i) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx Xxxxx Xxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Hasbro 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 Rule 401(g)(2) or pursuant to Section 8A under the Act shall have been instituted or threatened by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Ropes & Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives in form the forms attached hereto as Exhibit A-1 and substance reasonably satisfactory to the RepresentativesExhibit A-2, respectively.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx Xxxxx Xxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chief Executive Officer or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to At the Representatives a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Company, dated date hereof and at the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Company shall have requested and caused PricewaterhouseCoopers KPMG LLP to have furnished furnish 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)Underwriters letters, dated respectively as of the Execution Time date hereof and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information Underwriters of the type customarily included described in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package and the Final ProspectusAICPA Statement on Auditing Standards No. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter72.
(gf) 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 material adverse 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 reasonably likely to result in a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange ActRule 436(g)) 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.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx Xxxxx Xxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Hasbro 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule V hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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, 2013, nothing came to their attention which caused them to believe that, with respect to the period subsequent to September 30, 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 September 30, 2013 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from October 1, 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of PG&E Corporation’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final pricing term sheet contemplated by Section 5(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 by the Commission.
(b) The Company shall have requested and caused Xxxxx (i) Xxxx Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives Representative and its counsel their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representative, substantially in the form of Exhibit A hereto; and substance reasonably satisfactory (ii) Xxxxxx X. Xxxxxxx, Xx., Senior Counsel for the Company, to have furnished to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, Representative and its counsel for the Underwriters, such legal opinion and negative assurance letterhis opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, substantially in the form of Exhibit B hereto.
(c) The Representative shall have received from Shearman & Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date 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 shall 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 Treasurer principal financial or an Assistant Treasurer accounting officer of the Company or the treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate have carefully has examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries that would 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).
(e) The Company shall have furnished to the Representatives a 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 RepresentativesRepresentative, at the Execution Time and at the Closing Date, 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, containing statements confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the type customarily included Company for the three, six and nine-month periods ended March 31, 2014, June 30, 2014 and September 30, 2014, respectively, in accountants’ “comfort letters” to underwriters accordance with respect to the financial statements review standards of the PCAOB, and certain financial information contained or incorporated by reference substantially in the Disclosure Package and the Final Prospectus. References to the Final Prospectus form set forth in this paragraph (f) include any supplement thereto at the date of the letterExhibit C hereto.
(gf) 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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) 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 such term is used in relation to Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ih) 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.
(i) The Issuers shall have taken all action required to be taken by it for the Securities to be eligible for clearance and settlement through DTC, it being understood that the Initial Purchasers shall obtain relevant CUSIP numbers for the Notes. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel 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 and such cancellation shall be without liability of any party to any other party, except to the extent provided in Sections 5 and 7. 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 Shearman & Xxxxxxx Sterling LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period required prescribed for such filing by Rule 424(b)the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet Final Term Sheet contemplated by Section 5(b5(a) hereto hereof 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 period 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 part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission.; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction;
(b) The Company Underwriters shall have requested received on the Closing Date an opinion and caused negative assurance letter of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters. Such opinion and negative assurance letter shall be rendered to the Underwriters at the request of the Company and shall so state therein. The Company intends and agrees that Xxxxxxxx & Xxxxx LLP is authorized to rely upon all of the representations made by the Company in this Agreement in connection with rendering its opinions pursuant to this subsection;
(c) The Underwriters shall have received on the Closing Date an opinion of internal counsel to the Company in form and substance reasonably satisfactory to the Underwriters;
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal an opinion and negative assurance letter, dated the Closing 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 Pricing 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 shall reasonably request for the purpose of enabling them to pass upon such matters.;
(de) The Company shall have furnished On the date of the Prospectus at a time prior to the Representatives a certificate execution of this Agreement, at 9:30 a.m., New York City time on the Company, signed by effective date of any post-effective amendment to the Treasurer or an Assistant Treasurer Registration Statement filed subsequent to the date of the Company, dated this Agreement and also at the Closing Date, Deloitte & Touche LLP shall furnish to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 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 furnished to the Representatives a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Company, dated the Closing Date, Underwriters in form and substance reasonably satisfactory to the Representatives.
(f) The Company shall have requested Underwriters and caused PricewaterhouseCoopers LLP to have furnished to the Representativestheir counsel, 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, a letter containing statements and information of the type customarily ordinarily included in accountants’ accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information contained with respect to the Company included or incorporated by reference in the Disclosure Package Pricing Prospectus and the Final Prospectus. References Prospectus dated as of the date hereof and as of the Closing Date, respectively; provided that such letter shall use a “cut-off” date for the procedures referenced therein no earlier than two business days prior to the Final Prospectus in this paragraph respective dates of delivery;
(f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, execution and delivery of this Agreement and prior to 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)Closing Date, there shall not have been occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the businesscondition, financial position or results of otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, except as from that set forth in or contemplated the Pricing Prospectus that, in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, is so material and adverse as to make it impractical or inadvisable impracticable to proceed with the public offering or the delivery of the Securities as on the terms and in the manner contemplated by in the Registration Statement Prospectus and this Agreement;
(exclusive g) On or after the Applicable Time, other than any downgrade, notice of any amendment thereof)intended or potential downgrading of, or any review for a possible change consisting of, a “one notch” downgrade by either of S&P Global Ratings (“S&P”) and/or Xxxxx’x Investor Services (“Moody’s”) in (x) the Disclosure Package and rating accorded the Final Prospectus Company or any of the securities of the Company or any of its subsidiaries or (exclusive of any amendment or supplement thereto).
(hy) Subsequent to the Execution Timerating outlook for the Company, there shall not have been occurred any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) downgrading, or any notice given of any intended or potential decrease in any such rating downgrading or of any review for a possible change in any such rating that does not indicate the direction of the possible change.change by S&P or Moody’s in (i) the rating accorded the Company or any of the securities of the Company or any of its subsidiaries or (ii) the rating outlook for the Company;
(h) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to the Clearstream or Euroclear systems in Europe; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or the occurrence of any other calamity or crisis involving the United States; or (v) any change in national or international financial, political or economic conditions, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus;
(i) Prior The Company shall have complied with the provisions of Section 5(c) hereof with respect to the Closing Date, furnishing of prospectuses on the Business Day next succeeding the date of this Agreement; and
(j) The Company shall have furnished or caused to be furnished to the Representatives such further informationat the Closing Date a certificate, certificates dated the Closing Date and documents as signed by an officer of the Company, on behalf of the Company, reasonably satisfactory to the Representatives may reasonably requestas to the accuracy of the representations and warranties of the Company herein at and as of such Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to the matters set forth in subsections (a), (f) and (g) of this Section. If any of the conditions specified in this Section 6 8 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation cancelation 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto Final Term Sheet 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company to have furnished to the Representatives the opinion, dated the Closing 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.
(c) The Company shall have requested and caused its special tax counsel to the Company, to have furnished to the Representatives their legal opinion and negative assurance letteran opinion, dated the Closing Date and addressed to the Representatives in form and substance reasonably satisfactory Representatives, with respect to certain United States federal income tax matters related to the RepresentativesSecurities and other related matters as the Representatives may reasonably require.
(cd) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chief Executive Officer, or an Assistant Treasurer of the CompanyChief Financial Officer, dated the Closing Date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageFinal Prospectus, the Final Prospectus Disclosure Package and any supplements or amendments thereto, as well as each electronic road show, if any, roadshow used in connection with the offering of to offer the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), 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).
(e) The Company shall have furnished to the Representatives a 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 it’s accountants to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters a customary “comfort letter” (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, that is satisfactory in content and 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 contained or incorporated by reference in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)after consultation with the Company, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)) and any Issuer Free Writing Prospectus.
(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 in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) 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 6 shall not have been fulfilled when and as provided in this AgreementAgreement with respect to an offering of Securities, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled with respect to such offering 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, the counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, 00000, underwriters 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule V hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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, or for the period from April 1, 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of PG&E Corporation’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commission.
(b) The Company shall have requested and caused Xxxxx (i) Xxxx Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit A hereto; and (ii) Xxxxxx X. Xxxxxxx, Xx., Senior Counsel for the Company, to have furnished to the Representatives in form his opinion, dated the Closing Date and substance reasonably satisfactory addressed to the Representatives, substantially in the form of Exhibit B hereto.
(c) The Representatives shall have received from Xxxxxx Shearman & Xxxxxxx Sterling LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer principal financial or an Assistant Treasurer accounting officer of the Company or the treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate have carefully has examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries that would 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).
(e) The Company shall have furnished to the Representatives a 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, containing statements confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the type customarily included Company for the three-month, six-month and nine-month periods ended March 31, 2010, June 30, 2010, and September 30, 2010 and as at September 30, 2010, in accountants’ “comfort letters” to underwriters accordance with respect to the financial statements Statement on Auditing Standards No. 100, and certain financial information contained or incorporated by reference substantially in the Disclosure Package and the Final Prospectus. References to the Final Prospectus form set forth in this paragraph (f) include any supplement thereto at the date of the letterExhibit C hereto.
(gf) 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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(ih) 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) There shall not exist at, and as of, the Closing Date any conditions that would constitute a default (or an event that with notice or the lapse of time, or both, would constitute a default) under the Revolving Credit and Guaranty Agreement, dated as of January 31, 2008, among the Company, as borrower, the guarantors party thereto, Citicorp USA, Inc., as administrative agent and collateral agent, Citigroup Capital Markets, Inc., as joint lead arranger and joint bookrunner, Xxxxxx Brothers Inc., as joint lead arranger, joint bookrunner and syndication agent, Barclays Capital, as joint bookrunner and documentation agent, and the lenders and other financial institutions party thereto (the “Credit Agreement”), as amended as of the Closing Date, and the Company shall be in compliance with all covenants and conditions under the Credit Agreement and have the capacity to borrow the full amount of the commitments under such Credit Agreement as of the Closing Date.
(j) The Issuers shall have taken all action required to be taken by it for the Securities to be eligible for clearance and settlement through DTC, it being understood that the Initial Purchasers shall obtain relevant CUSIP numbers for the Notes.
(k) The Credit Agreement shall have been amended as described in the Disclosure Package.
(l) The Underwriters shall have received from the Chief Financial Officer of the Company a letter, in form and substance satisfactory to the Underwriters and dated the Closing Date, relating to certain financial information included or incorporated by reference in the Disclosure Package and the Final Prospectus that is not covered in the letters from PricewaterhouseCoopers LLP, referenced in 6(e) above. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentatives and such cancellation shall be without liability of any party to any other party, except to the extent provided in Sections 5 and 7. 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 Shearman & Xxxxxxx Sterling LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, XX 00000, on the Closing Date.
Appears in 1 contract
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 Final Prospectus, and any supplement thereto, 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 5(bRule 430B, and such post-effective amendment shall have become effective.
(b) hereto The Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the 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 notice objecting post-effective amendment to its use 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 any 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 requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for advised the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, Company that the Registration Statement, the Disclosure PackagePackage or the Prospectus, the Final Prospectus (together with 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 other related matters as is required to be stated therein or is necessary to make the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they shall reasonably request for the purpose of enabling them to pass upon such mattersstatements therein not misleading.
(de) The Except as contemplated in the Disclosure Package and the Prospectus, subsequent to the respective dates as of which information is given in the Registration 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 furnished to received the Representatives a certificate opinion of the CompanyXxxxxx X. Xxxxxxx, signed by the Treasurer or an Assistant Treasurer Esquire, Senior Vice President and General Counsel of the Company, dated the Closing Date, in the form of Exhibit A attached hereto.
(g) On the Closing Date, you shall have received the opinion of XxXxxx Law Firm, P.A., counsel for the Company, dated the Closing Date, in the form of Exhibit B attached hereto.
(h) On the Closing Date, you shall have received from Xxxxxxxx Xxxxxxx LLP, counsel for the several Underwriters, such opinion or opinions, dated the Closing Date, as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request 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.
(i) On the Closing Date, you shall have received from the Company a certificate, signed by its Chairman, President or a Vice President and by its Treasurer, principal financial officer or principal accounting officer, dated the Closing Date, to the effect that that, to the signer best 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, if any, used in connection with the offering of the Securities, and this Agreement and thattheir knowledge based on a reasonable investigation:
(i) the representations and warranties of the Company contained in this Agreement are true and correct in all material 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 stop order suspending the effectiveness of the Registration Statement Statement, or any notice objecting post-effective amendment to its use the Registration Statement, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, or threatened by the Commission; and;
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference 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 Effectmaterial 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).Prospectus; and
(eiv) The Company shall have furnished the Registration Statement and the Prospectus, and any amendments or supplements thereto, contain all statements and information required to be included therein; the Representatives a 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 RepresentativesRegistration Statement or any amendments thereto, at the time the Registration Statement or such amendments became effective and at the Execution Time 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 DateDate 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, letters (which may refer to letters previously delivered to one or more in the light of the Representatives)circumstances under which they were made, dated respectively not misleading; the Disclosure Package, as of the Execution Time Applicable Time, did not contain any untrue statement of a material fact and as did not omit to state any material fact necessary in order to make the statements therein, in the light of the Closing Datecircumstances 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 or any amendment or supplement thereto 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.
(j) On or prior to the date hereof, you shall have 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 date of the execution and delivery of this Agreement, addressed to you and in form and substance satisfactory to you, (1) confirming that they are independent accountants with respect to the RepresentativesCompany as required by the Act and (2) with respect to the 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 containing statements and information of the type customarily ordinarily 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 Disclosure Package and the Final Prospectus, including any pro forma financial information. References to At the Final Prospectus Closing Date, 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 this paragraph (f) include any supplement thereto at accordance with the procedures set forth in the letter from Deloitte & Touche LLP, during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three business days prior to the Closing Date.
(gk) 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 There shall not have occurred after the date hereof any downgrading, nor shall any notice have been given of any material adverse change, intended or potential downgrading or of any development involving review for a prospective material adverse possible change that indicates a negative change or does not indicate the direction of the possible change, in or affecting the business, financial position or results of operations rating accorded any securities 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 amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities its subsidiaries by any “nationally recognized statistical rating organization” (as such term is defined for purposes of under Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(il) 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 6 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 counsel for the Underwriterstheir 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 6 5 shall be delivered at to the office of Xxxxxx & Xxxxxxx LLPXxXxxx Law Firm, P.A., counsel for the UnderwritersCompany, at 0000 Xxxxxx xx xxx Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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; 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxx & Xxxxxxxx LLPXxxx, counsel for the Company, to have furnished furnish to the Representatives their legal opinion and negative assurance letteran opinion, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably 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 each of (i) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP and (ii) Xxxxx Xxxx & Xxxxxxx LLPXxxxxxxx, counsel for to the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date 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 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 Companycertificate, signed by the Treasurer principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure PackageFinal Prospectus, the Final Prospectus Disclosure Package and any amendments or supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, thereto and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and 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).
(e) The Company shall have furnished to the Representatives a 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 On the date hereof, the Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished furnish to the Representatives, at Representatives a letter dated 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, date hereof 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 customarily ordinarily 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) On the Closing Date, the 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 pursuant to Section 6(f) hereof, except that the specified date referred to shall be a date not more than three Business Days prior to the Closing Date.
(h) 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 amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease in the amounts specified in the letter referred to in paragraph (f) of this Section 6; or (ii) any change, or any development involving a prospective material adverse change, in or affecting the business, properties, financial position condition or 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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 amendment or supplement thereto).
(hi) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(j) 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:
(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, 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 Option Shares to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(d) hereof.
(v) A letter from PricewaterhouseCoopers LLP, dated such Date of Delivery, to the effect that they reaffirm the statements made in the letter 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.
(m) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 by pursuant to this Section 6 shall be delivered at the office offices of Xxxxxx Xxxxx Xxxx & Xxxxxxx LLPXxxxxxxx, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, in substantially the form and substance reasonably satisfactory to the Representatives.attached hereto as Exhibit A.
(c) The Representatives shall have received from 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 & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements 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 Effectmaterial adverse effect on the condition (financial or otherwise), 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) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, 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, containing statements and information of the type customarily ordinarily 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 Disclosure Package Registration Statement and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the such 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)Time, there shall not have been (i) any material adverse 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 reasonably foreseeable prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 3(a)(62Rule 436(g) 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, XX, 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Ropes & Xxxxxxxx Gray LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, each dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Gxxxxxx Procter LLP, as counsel for the Company with respect to intellectual property matters, to have furnished to the Representatives their 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 Xxxxxx Lxxxxx & Xxxxxxx Wxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteropinion, dated the Closing 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 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 Treasurer principal executive officer and the principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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) 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business, prospectus 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) The Company shall have furnished to the Representatives a 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 Ernst & Young 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)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 and certain financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) The Company shall have furnished to the Representatives, at the Execution Time and at the Closing Date, certificates of the Company dated respectively as of the Execution Time and as of the Closing Date, with respect to certain financial data, signed by the principal financial or accounting officer of the Company, 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 material adverse change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) 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) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 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.
(ik) The Company shall use its best efforts to cause the Shares to be listed on the Nasdaq Capital Market and to maintain such listing on the Nasdaq Capital Market.
(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) Prior to the Closing DateExecution Time, the Company shall have furnished to the Representatives such further information, certificates a letter substantially in the form of Exhibit C hereto (the “Lock-Up Agreement”) from each officer and documents as director of the Representatives may reasonably requestCompany listed on Schedule V hereto addressed to the Representatives. The Company will use its best efforts to enforce the terms of each Lock-Up Agreement and will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(n) The Company shall not have received an objection from the Nasdaq Capital Market with respect to the listing of additional shares notification that it filed with the Nasdaq Capital Market in connection with the Shares and the Warrant Shares. If any of the conditions specified in this Section 6 5 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 5 shall be delivered at the office of Xxxxxx Lxxxxx & Xxxxxxx Wxxxxxx, LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx10000 Xxxx Xxxxx Xxxxx, Xxx XxxxXxxxx, XX, 00000XX 00000 (or such other place as mutually may be agreed upon), on or before 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 Final Prospectus, and any supplement 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 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Schedule II hereto.
(c) The Representative shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date 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 shall 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, 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, containing statements and information confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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 December 31, 2012, nothing came to their attention which caused them to believe that, with respect to the period subsequent to December 31, 2012, 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 December 31, 2012 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from January 1, 2013 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, net 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 shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; 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 Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions “Certain Ratios” 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, 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt or Pacific Gas and Electric Company’s securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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 changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New York, 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 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 date hereof, as 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) at the Time of Sale and as of the Closing Date, to the accuracy of the statements of the Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 or any notice objecting Statement, as amended from time to its use time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened, the Final Prospectus shall have been filed with the Commission not later than 5:30 P.M., New York City time, on the second Business Day following the date hereof, and each Issuer Free Writing Prospectus shall have been timely filed with the Commission to the extent required by Rule 433 under the CommissionAct.
(b) The Company shall have requested furnished to the Representatives the corporate opinion, tax opinion and caused Xxxxx negative assurance letter of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLPLLP and Affiliates, counsel for to the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. In rendering the opinions , Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and Affiliates may (A) assume the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to such firm as originals, the conformity to original documents of all documents submitted to such firm as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies; and (B) as to any facts relevant to the opinions stated therein that such firm did not independently establish or verify, such firm rely upon statements and representations of officers and other representatives of the Company and others and of public officials, including those in the certificates of officers of the Company and the factual representations and warranties contained in this Agreement.
(c) The Company shall have furnished to the Representatives their legal the opinion of Xxxxxxx Xxxx, Executive Vice President, General Counsel and negative assurance letterSecretary of the Company, dated the Closing Date and addressed to the Representatives Date, in form and substance reasonably satisfactory to the Representatives.
(cd) The Representatives shall have received from Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion or opinions and negative assurance letter, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure PackageTime of Sale Information, 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 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, Company signed by the Treasurer or an Assistant Treasurer Chairman of the Company, Board or any Vice President of the Company dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) 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 stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements included in the Time of Sale Information and the Final Prospectus, there has been no material adverse change in the financial condition, earnings, business, properties or results of operations of the Company and its subsidiaries on a consolidated subsidiariesbasis, incorporated by reference whether or not arising from transactions in the Disclosure Package and the Final Prospectus (exclusive ordinary course of any supplement thereto), there has been no Material Adverse Effectbusiness, except as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(ef) The Company At the date of this Agreement and the Closing Date, Xxxxx & Young LLP shall have furnished to the Representatives a certificate of the Company related letters (which, with respect to certain litigation disclosures, signed by the General Counsel of the Company, dated any letter delivered on 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, in which case the letter provided at the Closing Date shall state that the previous letter can be relied on), dated respectively as of the Execution Time date of this Agreement and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily 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 Disclosure Package Time of Sale Information and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement Statement, the Time of Sale Information (exclusive of any amendment thereofsupplement thereto) and the Final Prospectus (exclusive of any amendment or supplement thereto)) and prior to the Closing Date, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position properties or results of operations of the Company and its subsidiariessubsidiaries on a consolidated basis, taken as a whole, 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 is is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)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 Information and the Final Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(h) Subsequent to the Execution Timeexecution of this Agreement and prior to the Closing Date, there shall not have been any decrease downgrading in the rating ratings of any of the Company’s debt securities by any “nationally recognized statistical rating organization,” (as such term is defined for purposes of by the Commission in Section 3(a)(62) under of the Exchange Act) Act or any notice given public announcement by any such organization that it has under surveillance or review with negative implications, its rating 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 changeCompany’s debt securities (or proposed rating of the Securities).
(i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(j) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(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. If any of the conditions specified in this Section 6 shall not have been fulfilled to the reasonable satisfaction of the Representatives when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the reasonable satisfaction of the Representatives and counsel for the Underwritersits 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 confirmed in writing. The documents required to be delivered by this the manner described in 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 Date14 hereof.
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 Final Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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; 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxxxx & Xxxxxxxx Sterling LLP, counsel for the Company, to have furnished furnish to the Representatives their legal opinion and negative assurance letteran opinion, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably 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 Xxxxxx & Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for to the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date 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 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 Companycertificate, signed by the Treasurer principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageFinal Prospectus, the Final Prospectus Disclosure Package and any amendments or supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, thereto and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; threatened, and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and 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).
(e) The Company shall have furnished to the Representatives a 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 On the date hereof, the Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished furnish to the Representatives, at Representatives a letter dated 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 Datedate hereof, 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 customarily ordinarily 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) On the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives a letter dated the Closing Date, affirming the statements made in the comfort letter referred to in Section 6(f).
(h) 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 amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease in the amounts specified in the letter referred to in paragraph (f) of this Section 6; or (ii) any change, or any development involving a prospective material adverse change, in or affecting the business, properties, financial position condition or 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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 amendment or supplement thereto).
(hi) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(ij) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 will be delivered at the office of Xxxxxx Xxxxx Xxxx & Xxxxxxx LLPXxxxxxxx, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 00000X.X. 10017, 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 Final Prospectus, and any supplement thereto, Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period required prescribed for such filing by Rule 424(b)the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet Final Term Sheet contemplated by Section 5(b5(a) hereto hereof 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 period 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 part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission.; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction;
(b) The Company Underwriters shall have requested received on the Closing Date an opinion and caused Xxxxx Xxxx negative assurance letter of Kxxxxxxx & Xxxxxxxx Exxxx LLP, outside counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Date, in form and substance reasonably satisfactory to the Representatives.Underwriters. Such opinion and negative assurance letter shall be rendered to the Underwriters at the request of the Company and shall so state therein. The Company intends and agrees that Kxxxxxxx & Exxxx LLP is authorized to rely upon all of the representations made by the Company in this Agreement in connection with rendering its opinions pursuant to this subsection;
(c) The Underwriters shall have received on the Closing Date an opinion of internal counsel to the Company in form and substance reasonably satisfactory to the Underwriters;
(d) The Representatives shall have received from Xxxxxx Dxxxx Xxxx & Xxxxxxx Wxxxxxxx LLP, counsel for the Underwriters, such legal an opinion and negative assurance letter, dated the Closing 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 Pricing 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 shall reasonably request for the purpose of enabling them to pass upon such matters.;
(de) The Company shall have furnished On the date of the Prospectus at a time prior to the Representatives a certificate execution of this Agreement, at 9:30 a.m., New York City time on the Company, signed by effective date of any post-effective amendment to the Treasurer or an Assistant Treasurer Registration Statement filed subsequent to the date of the Company, dated this Agreement and also at the Closing Date, Deloitte & Touche LLP shall furnish to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 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 furnished to the Representatives a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Company, dated the Closing Date, Underwriters in form and substance reasonably satisfactory to the Representatives.
(f) The Company shall have requested Underwriters and caused PricewaterhouseCoopers LLP to have furnished to the Representativestheir counsel, 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, a letter containing statements and information of the type customarily ordinarily included in accountants’ accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information contained with respect to the Company included or incorporated by reference in the Disclosure Package Pricing Prospectus and the Final Prospectus. References Prospectus dated as of the date hereof and as of the Closing Date, respectively; provided that such letter shall use a “cut-off” date for the procedures referenced therein no earlier than two business days prior to the Final Prospectus in this paragraph respective dates of delivery;
(f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, execution and delivery of this Agreement and prior to 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)Closing Date, there shall not have been occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the businesscondition, financial position or results of otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, except as from that set forth in or contemplated the Pricing Prospectus that, in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, is so material and adverse as to make it impractical or inadvisable impracticable to proceed with the public offering or the delivery of the Securities as on the terms and in the manner contemplated by in the Registration Statement Prospectus and this Agreement;
(exclusive g) On or after the Applicable Time, other than any downgrade, notice of any amendment thereof)intended or potential downgrading of, or any review for a possible change consisting of, a “one notch” downgrade by either of S&P Global Ratings (“S&P”) and/or Mxxxx’x Investor Services (“Moody’s”) in (x) the Disclosure Package and rating accorded the Final Prospectus Company or any of the securities of the Company or any of its subsidiaries or (exclusive of any amendment or supplement thereto).
(hy) Subsequent to the Execution Timerating outlook for the Company, there shall not have been occurred any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) downgrading, or any notice given of any intended or potential decrease in any such rating downgrading or of any review for a possible change in any such rating that does not indicate the direction of the possible change.change by S&P or Moody’s in (i) the rating accorded the Company or any of the securities of the Company or any of its subsidiaries or (ii) the rating outlook for the Company;
(h) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to the Clearstream or Euroclear systems in Europe; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or the occurrence of any other calamity or crisis involving the United States; or (v) any change in national or international financial, political or economic conditions, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus;
(i) Prior The Company shall have complied with the provisions of Section 5(c) hereof with respect to the Closing Date, furnishing of prospectuses on the Business Day next succeeding the date of this Agreement; and
(j) The Company shall have furnished or caused to be furnished to the Representatives such further informationat the Closing Date a certificate, certificates dated the Closing Date and documents as signed by an officer of the Company, on behalf of the Company, reasonably satisfactory to the Representatives may reasonably requestas to the accuracy of the representations and warranties of the Company herein at and as of such Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to the matters set forth in subsections (a), (f) and (g) of this Section. If any of the conditions specified in this Section 6 8 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation cancelation 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 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 Final Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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; . The Registration Statement shall have become effective under the Act 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxxxxxx and Xxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Annex A.
(c) The Company shall have requested and caused Xxxxxxxxx X. Marius, Vice President, Secretary and Chief Legal Officer for the Company, to have furnished to the Representatives in form his opinion, dated the Closing Date and substance reasonably satisfactory addressed to the Representatives., in substantially the form attached hereto as Annex B.
(cd) The Representatives shall have received from Xxxxxx O’Melveny & Xxxxxxx Xxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of in which such certificate have carefully examined the Registration Statementofficers, the Disclosure Packageafter reasonable investigation, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, and this Agreement and shall state that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), 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).
(e) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the Representatives, (i) at the Execution Time and at Time, a letter dated the Closing Date, letters (which may refer date hereof addressed to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing DateUnderwriters, 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 audited and unaudited financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final ProspectusProspectus and (ii) at the Closing Date, a letter dated such date, in form and substance satisfactory to the Representatives, to the extent that they reaffirm the statements made in the letter furnished by them pursuant to the foregoing clause (i) of this paragraph (f), 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. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 3(a)(62) under of the Exchange Act) or and there shall not have been 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 O’Melveny & Xxxxxxx Xxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx0 Xxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Oxxxxx, Hxxxxxxxxx & Xxxxxxxx Sxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule V hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Mxxxxxx & Xxxxxxx Fxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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 December 31, 2007, nothing came to their attention which caused them to believe that, with respect to the period subsequent to December 31, 2007, 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 December 31, 2007 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from January 1, 2008 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, net 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration 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, 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of PG&E Corporation’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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 changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Mxxxxxx & Xxxxxxx Fxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 or Rule 401(g)(2) under the Securities Act shall have been instituted or threatened by the Commissionthreatened.
(b) The Company shall have requested and caused XxXxxxxxx, Will & Xxxxx Xxxx & Xxxxxxxx LLP, special counsel for the Company, to shall have furnished to the Representatives their legal Underwriters its written opinion and negative assurance letteraddressed to the Underwriters, dated the Closing Date and addressed to the Representatives Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form 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 satisfactory to the Representatives, substantially in the form of Annex II hereto;
(d) DLA Piper Xxxx Xxxx US LLP, local counsel for one of the Guarantors, shall have furnished to the Underwriters its written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form of Annex III hereto;
(e) The Representatives shall have received from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 Issuers shall have furnished to such counsel such documents as they shall 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 Treasurer or an Assistant Treasurer executive officer of the 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 signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, 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 contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiariesMay 31, incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)2006, there has been no shall not have occurred any event that would have a Material Adverse Effect or any 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).
(e) The Company shall have furnished to the Representatives a 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.
(fg) The Company shall have requested and caused PricewaterhouseCoopers KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, 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, Representatives containing statements and information of the type customarily included in accountants’ accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(gh) 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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(ij) 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 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 counsel 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, LLP counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx00 Xxxx Xxxxxx, Xxx Xxxx, XX, 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 Final Prospectus, and any supplement 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 5(b4(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion opinions substantially in the form of Exhibit A and negative assurance letterExhibit B hereto, dated the Closing Date and addressed to the Representatives in form and substance reasonably satisfactory 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 Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chief Executive Officer, the Chief Operating Officer or an Assistant Treasurer a Senior Vice President of the Company and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), 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) The Company shall have furnished to On the Representatives a certificate date of the Company related to certain litigation disclosures, signed by the General Counsel of the Company, dated this Agreement and on the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Company shall have requested and caused PricewaterhouseCoopers LLP to shall 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 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, 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 each of the Registration Statement, the Disclosure Package and the Final Prospectus. References ; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letterClosing Date.
(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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(h) Subsequent to the Execution Time, there (i) no downgrading shall not have been any decrease occurred in the rating of accorded to the Securities or any other debt securities issued or guaranteed by the Company or any of the Company’s debt securities its subsidiaries by any “nationally recognized statistical rating organization” (”, as such term is defined for purposes of under Section 3(a)(62) under of the Exchange ActAct 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 other debt securities issued or guaranteed by the Company or any notice given of any intended or potential decrease in any such rating or its subsidiaries (other than an announcement with positive implications of a possible change in any such rating that does not indicate the direction of the possible changeupgrading).
(ih) 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 6 5 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 5 shall be delivered at the office of Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx each of Xxxxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Company, and Blake, Xxxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished and the Company’s general counsel shall furnish to the Representatives their legal opinion and negative assurance letteropinions, each dated the Closing Date and addressed to the Representatives Representatives, substantially in form the forms of Exhibit A, Exhibit B and substance reasonably satisfactory to the RepresentativesExhibit C hereto, respectively.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Company’s Board of Directors or an Assistant Treasurer one of its Co-Chief Executive Officers and by the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 KPMG LLP to have furnished to the Representatives, 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)“comfort” 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 confirming that it is an independent registered public accounting firm within the meaning of the type customarily included in accountants’ “comfort letters” to underwriters with respect to Act and the financial statements Exchange Act and certain financial information contained or incorporated the applicable rules and regulations adopted by reference the Commission and the PCAOB substantially in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph form of Exhibit D hereto.
(f) include any supplement thereto The Company shall have furnished to the Representatives a certificate of the Company, signed by its chief financial officer, substantially in the forms of Exhibit E and Exhibit F hereto, at the date of Execution Time and at the letterClosing Date, respectively.
(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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 in Section 3(a) of Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New 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 in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution date hereof, as 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) at the Time of Sale and as of the Closing Date, to the accuracy of the statements of the Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 or any notice objecting Statement, as amended from time to its use time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened threatened, the Final Prospectus shall have been filed with the Commission not later than 5:30 P.M., New York City time, on the second Business Day following the date hereof, and each Issuer Free Writing Prospectus shall have been timely filed with the Commission to the extent required by Rule 433 under the CommissionAct.
(b) The Company shall have requested furnished to the Representatives the corporate opinion, tax opinion and caused Xxxxx negative assurance letter of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLPLLP and Affiliates, counsel for to the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. In rendering the opinions , Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and Affiliates may (A) assume the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to such firm as originals, the conformity to original documents of all documents submitted to such firm as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies; and (B) as to any facts relevant to the opinions stated therein that such firm did not independently establish or verify, such firm rely upon statements and representations of officers and other representatives of the Company and others and of public officials, including those in the certificates of officers of the Company and the factual representations and warranties contained in this Agreement.
(c) The Company shall have furnished to the Representatives their legal the opinion of Xxxxxxx Xxxx, Executive Vice President, General Counsel and negative assurance letterSecretary of the Company, dated the Closing Date and addressed to the Representatives Date, in form and substance reasonably satisfactory to the Representatives.
(cd) The Representatives shall have received from Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion or opinions and negative assurance letter, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure PackageTime of Sale Information, 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 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, Company signed by the Treasurer or an Assistant Treasurer Chairman of the Company, Board or any Vice President of the Company dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) 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 stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements included in the Time of Sale Information and the Final Prospectus, there has been no material adverse change in the financial condition, earnings, business, properties or results of operations of the Company and its subsidiaries on a consolidated subsidiariesbasis, incorporated by reference whether or not arising from transactions in the Disclosure Package and the Final Prospectus (exclusive ordinary course of any supplement thereto), there has been no Material Adverse Effectbusiness, except as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(ef) The Company At the date of this Agreement and the Closing Date, Xxxxx & Xxxxx LLP shall have furnished to the Representatives a certificate of the Company related letters (which, with respect to certain litigation disclosures, signed by the General Counsel of the Company, dated any letter delivered on 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, in which case the letter provided at the Closing Date shall state that the previous letter can be relied on), dated respectively as of the Execution Time date of this Agreement and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily 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 Disclosure Package Time of Sale Information and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement Statement, the Time of Sale Information (exclusive of any amendment thereofsupplement thereto) and the Final Prospectus (exclusive of any amendment or supplement thereto)) and prior to the Closing Date, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position properties or results of operations of the Company and its subsidiariessubsidiaries on a consolidated basis, taken as a whole, 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 is is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)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 Information and the Final Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(h) Subsequent to the Execution Timeexecution of this Agreement and prior to the Closing Date, there shall not have been any decrease downgrading in the rating ratings of any of the Company’s debt securities by any “nationally recognized statistical rating organization,” (as such term is defined for purposes of by the Commission in Section 3(a)(62) under of the Exchange Act) Act or any notice given public announcement by any such organization that it has under surveillance or review with negative implications, its rating 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 changeCompany’s debt securities (or proposed rating of the Securities).
(i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(j) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(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. If any of the conditions specified in this Section 6 shall not have been fulfilled to the reasonable satisfaction of the Representatives when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the reasonable satisfaction of the Representatives and counsel for the Underwritersits 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 confirmed in writing. The documents required to be delivered by this the manner described in 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 Date14 hereof.
Appears in 1 contract
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 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 Final Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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; the Company has paid the fees required by the Commission relating to the Notes 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, United States counsel for the Company, to have furnished furnish to the Representatives their legal opinion and negative assurance letteran opinion, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Exhibit B hereto.
(c) The Company shall have requested and caused Xxxx X. Xxxxxx, XX, Assistant 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 Xxxxxx & Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, United States counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date 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 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 Companycertificate, signed by the Treasurer principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageFinal Prospectus, the Final Prospectus Disclosure Package and any amendments or supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, thereto and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
threatened, and (iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and 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) The Company shall have furnished to the Representatives a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Company, dated At 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 furnish 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), Representatives a letter dated respectively as of the Execution Time and as of the Closing Datesuch 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 customarily ordinarily 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 Disclosure Package Registration Statement and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) 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 amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease in the amounts specified in the letter referred to in paragraph (f) of this Section 6; or (ii) any change, or any development involving a prospective material adverse change, in or affecting the business, properties, financial position condition or 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(h) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 will be delivered at the office of Xxxxxx & Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxxxxxxxxxxx Xxxxxx, Xxx XxxxX.X., XXXxxxxxxxxx, 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 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:
(a) The Final Prospectus, and any supplement thereto, shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto hereof, 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Faegre Drinker Xxxxxx & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter10b-5 statement, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably satisfactory substantially the forms agreed to prior to the Representativesdate hereof.
(c) The Company shall have requested and caused its General Counsel, Xxxx X. Xxxxxx, to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form agreed to prior to the date hereof.
(d) The Representatives shall have received from Xxxxxx Cravath, Swaine & Xxxxxxx Xxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer or an Assistant Treasurer Chief Financial Officer and the General Counsel of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change, or any development involving a prospective material adverse change, in or affecting the business, business prospects, financial condition or results of operations of the Company and its subsidiaries considered 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 theretoamendments or supplements thereto after the date hereof).
(e) The Company shall have furnished to the Representatives a 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 At the date hereof and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished furnish 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)Representatives letters, dated respectively as of the Execution Time date hereof and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information Representatives of the type customarily included described in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letterPCAOB Statement on Auditing Standards AS 6101.
(g) 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 or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in Section 6(f) hereof or (ii) any change, or any development involving a prospective material adverse change, in or affecting the business, business prospects, financial position condition or results of operations of the Company and its subsidiaries, taken subsidiaries considered 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent Except as set forth in the Disclosure Package, subsequent to the Execution Applicable 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 in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall be eligible for clearance and settlement through DTC.
(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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Cravath, Swaine & Xxxxxxx Xxxxx LLP, counsel for the Underwriters, at 0000 000 Xxxxxx xx xxx XxxxxxxxXxxxxx, Xxx Xxxx, XX, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Zimmer Biomet 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 DateDate of Delivery, 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused furnished to the Representatives the written opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxx Xxxxx PLLC, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date of Delivery and addressed to the Representatives Underwriters, in the form and substance reasonably satisfactory to the Representatives.attached hereto as Exhibit A.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx Xxxxx Xxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date of Delivery 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing DateDate of Delivery, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) 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 of Delivery with the same effect as if made on the Closing Date of Delivery and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed complied with or satisfied at or prior to the Closing DateDate of Delivery;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse EffectChange, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company Representatives shall have furnished to received on the Representatives date hereof a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Companyletter, 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 Datedate hereof, in form and substance satisfactory to the Representatives, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and information of the type customarily 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 Disclosure Package Registration Statement and the Final Prospectus. References On the Date of Delivery, the Representatives shall have received from PricewaterhouseCoopers LLP, independent public accountants, a letter dated the Date of Delivery to the Final Prospectus effect that they reaffirm the statements made in the letter specified in the first sentence of this paragraph (f) include any supplement thereto at the date of the lettere).
(gf) 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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position prospects, earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(ih) Prior to the Closing DateDate of Delivery, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably requestrequest in order to evidence or confirm the accuracy of the Company’s representations and warranties set forth herein, the performance by the Company of its obligations hereunder to be performed at or before the Date of Delivery, and the fulfillment of the conditions set forth herein. If any of the conditions specified in this Section 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 counsel 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 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 by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx Xxxxx Xxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, 00000the Closing Location, on the Closing DateDate of Delivery.
Appears in 1 contract
Samples: Underwriting Agreement (Coca Cola Bottling Co Consolidated /De/)
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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal 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 Xxxxx Xxxxxxx, Managing Director, her 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 & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing 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 such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements 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 Effectmaterial adverse effect on the condition (financial or otherwise), 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) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, 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, containing statements and information of the type customarily ordinarily 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 Disclosure Package Registration Statement and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the such 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)Time, there shall not have been (i) any material adverse 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 reasonably foreseeable prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, XX, 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, General Counsel to the Company to have furnished to the Representatives their legal opinion and negative assurance letterhis opinion, dated the Closing Date 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 satisfactory to the Representatives.
(cd) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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) 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 by the Commissionthreatened; and
(iiiiv) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(ef) The Company On the date hereof, the Representatives shall have furnished to the Representatives a certificate of the Company related to certain litigation disclosuresreceived from PricewaterhouseCoopers LLP, signed by the General Counsel of independent registered public accountants for the Company, a letter dated the Closing Datedate hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the RepresentativesRepresentatives with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(fg) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at On the Closing Date, letters (which may refer to letters previously delivered to one the Representatives shall have received from PricewaterhouseCoopers LLP, independent public or more of certified public accountants for the Representatives)Company, a letter dated respectively as of the Execution Time and as of the Closing Datesuch 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 effect that they reaffirm the statements and certain financial information contained or incorporated by reference made in the Disclosure Package and letter furnished by them pursuant to subsection (b) of this Section 5, except that the Final Prospectus. References specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letterClosing Date.
(gh) 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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(ij) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule V hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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, 2008, nothing came to their attention which caused them to believe that, with respect to the period subsequent to September 30, 2008, 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, 2008 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from October 1, 2008 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, net 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration 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 the “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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of PG&E Corporation’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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 changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New York, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Pg&e Corp)
Conditions to the Obligations of the Underwriters. The obligations obligation 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, substantially in form the forms of Exhibits B-1 and substance reasonably satisfactory to the RepresentativesB-2, respectively.
(c) The Company shall have requested and caused Xxxxxxxx & Xxxxxxxx LLP, special 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 of Exhibit C.
(d) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), 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).
(e) The Company shall have furnished to the Representatives a 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 Xxxxxxxxx & Xxxxxxxxx, a member of PricewaterhouseCoopers LLP International Limited, to have furnished to the Representatives, at the Execution Time and at the Closing Date, 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, containing statements and information confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained or incorporated by reference in the Disclosure Package Registration Statement, 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; 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 and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions “The Offering”, “Risk Factors”, “Dilution” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, the information incorporated by reference in Items 1, 2, 6, 7 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, 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 (f) include 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 (i) any material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 3(a)(62Rule 436(g) 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) 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) The Securities shall have been listed and admitted and authorized for trading on the NYSE Amex, 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 and director of the Company addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx XxxxXxxxx, XX, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Protalix BioTherapeutics, 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 by the Commission.
(b) The Company shall have requested and caused Xxxxx Xxxx Weil, Gotshal & Xxxxxxxx Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form set forth in Exhibits A-1 and substance reasonably satisfactory to the RepresentativesA-2, respectively.
(c) The Representatives shall have received from Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer or an Assistant Treasurer principal financial officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 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 furnished to the Representatives a 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 and substance reasonably satisfactory to the Representatives.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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto hereof, 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 or Rule 401(g)(2) under the Act shall have been instituted or threatened by threatened. The Company has paid the Commissionregistration fee for this offering pursuant to Rule 456(b)(1) under the Act.
(b) The Company shall have requested and caused XxXxxxxxx Will & Xxxxx Xxxx & Xxxxxxxx LLP, special counsel for the Company, to shall have furnished to the Representatives their legal Underwriters its written opinion and negative assurance letter, each addressed to the Underwriters, dated the Closing Date and addressed to the Representatives Date, in form and substance reasonably satisfactory to the Representatives.
(c) [Reserved].
(d) The Representatives shall have received from Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Company’s Treasurer or an Assistant Treasurer executive officer of the 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 signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, 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 contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiariesNovember 30, incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)2022, there has been no shall not have occurred any event that would have a Material Adverse Effect or any 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).
(e) The Company shall have furnished to the Representatives a 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 KPMG LLP to have furnished to the RepresentativesUnderwriters, at the Execution Time and at the Closing Date, 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, Representatives containing statements and information of the type customarily included in accountants’ 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 (i) any material adverse change or decrease beyond that reported in paragraph 5 of the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or 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).
(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 under Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(j) The Company shall have furnished to the Representatives, at the Execution Time, a certificate of the Company, signed by the Company’s Chief Legal Officer, 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 certificate shall have been reaffirmed as of the Closing Date.
(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. If any of the conditions specified in this Section 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 counsel 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 Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx furnished to the Representatives:
(i) an opinion of Weil, Gotshal & Xxxxxxxx Mxxxxx LLP, counsel for to the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably satisfactory set forth on Exhibit A hereto; and
(ii) a letter of Weil, Gotshal & Mxxxxx LLP, dated the Closing Date and addressed to the Representatives, in form and substance set forth on Exhibit B hereto.
(c) The Representatives shall have received from Xxxxxx Fried, Frank, Harris, Sxxxxxx & Xxxxxxx Jxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), 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) The At or prior to the Closing Date, the Company shall have furnished executed and delivered to the Representatives a Underwriters an officers’ certificate pursuant to Section 3.01 of the Company related to certain litigation disclosures, signed by the General Counsel of the Company, dated the Closing DateIndenture, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, and the Indenture and such officers’ certificate shall be in full force and effect.
(f) The Company shall have requested and caused PricewaterhouseCoopers KPMG LLP to have furnished to the Representatives, at the Execution Time of Sale and at the Closing Date, letters 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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) 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) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any material adverse change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution TimeTime of Sale, 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 in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Weil, Gotshal & Xxxxxxx Mxxxxx LLP, counsel for the UnderwritersCompany, at 0000 Xxxxxx xx xxx Xxxxxxxx700 Xxxxx Xxxxxx, Xxx Xxxx, XX, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, in substantially the form and substance reasonably satisfactory to the Representatives.attached hereto as Exhibit A.
(c) The Representatives shall have received from 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 Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements 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 Effectmaterial adverse effect on the condition (financial or otherwise), 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) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, 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, containing statements and information of the type customarily ordinarily 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 Disclosure Package Registration Statement and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the such letter.
(g) 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, 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 with respect to Barclays Global Investors incorporated by reference in the Registration Statement and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. References to the Final Prospectus in this paragraph (g) include any supplement thereto at the date of such 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)Time, there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraphs (f) and (g) of this Section 6 or (ii) any change, or any development involving a reasonably foreseeable prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(ij) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx Stoel Rives LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives in the form and substance reasonably satisfactory to the Representatives.attached as Annex A.
(c) The Representatives shall have received from Xxxxxx Shearman & Xxxxxxx Sterling LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 addressing such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they shall 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 Treasurer Chief Executive Officer or an Assistant Treasurer the Senior Vice President, General Counsel and Secretary and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 such individuals, threatened by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there no event has been no occurred that has had a 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 furnished to the Representatives a 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 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 Dateletters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily ordinarily included in accountants’ accountant’s “comfort letters” to underwriters Underwriters in connection with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectusregistered public offerings. References to the Final Prospectus in this paragraph (fe) include includes any supplement thereto at the date of the letter.
(gf) 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 material adverse change, negative change specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving change which would cause a prospective material adverse change, in or affecting the business, financial position or results of operations of the Company and its subsidiaries, taken as a wholeMaterial Adverse Effect, 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 is is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s senior debt securities by any “nationally recognized statistical rating organization” (as defined for purposes Xxxxx’x Investors Service, Inc. or Standard & Poor’s, a division of Section 3(a)(62) under the Exchange Act) XxXxxx-Xxxx Companies, Inc., or any notice given from these entities of any intended or potential a pending decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Shearman & Xxxxxxx Sterling LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx XxxxXxxxxxxxx, XX, Xxxxxxxxxx 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Wachtell, Lipton, Roxxx & Xxxxxxxx LLPKaxx, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx Joxxxx X. XxXxxx, Executive Vice President, General Counsel and Secretary of the Company, his opinion, dated the Closing Date and addressed to the Representatives.
(d) The Selling Shareholders shall (i) have furnished to the Representative an opinion of the Vice President, Global Head of Legal Corporate of Sanofi pursuant to the laws of France, dated the Closing Date and addressed to the Representatives, and (ii) have requested and caused Weil, Gotshal & Xxxxxxx LLPMaxxxx XLP, counsel for the Selling Shareholders, to have furnished to the Representatives their opinion pursuant to the laws of the United States, dated the Closing Date and addressed to the Representatives.
(e) The Representatives shall have received from Ropes & Grxx XLP, counsel for the Underwriters, such legal their opinion and negative assurance letter, dated the Closing 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 such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they shall 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 Treasurer or an Assistant Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements 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 Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(eg) The Company Representatives shall have furnished to the Representatives received a certificate of the Company related to certain litigation disclosures, signed by the General Counsel each of the CompanySelling Shareholders, dated the Closing Date, in form and substance reasonably satisfactory to the Representativeseffect that the representations and warranties of such 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 such 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.
(fh) 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, containing statements and information of the type customarily ordinarily 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 Disclosure Package Registration Statement and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. References to the Final Prospectus in this paragraph (fh) include any supplement thereto at the date of the such letter.
(gi) 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)Time, there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a reasonably foreseeable prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hj) Subsequent to At the Execution Timedate of this Agreement, there the Representatives shall not have been any decrease received an agreement substantially in the rating form of Exhibit A hereto signed by each of the Selling Shareholders.
(k) In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company and the Selling Shareholders contained herein and the statements in any certificates furnished by the Company, any of its subsidiaries and the Selling Shareholders hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:
(i) A certificate of the Company’s debt securities , signed 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 decrease in any such rating or of a possible change in any such rating that does not indicate the direction Chief Financial Officer of the possible changeCompany, dated such Date of Delivery, confirming that the certificate on the Closing Date pursuant to Section 6(f) hereof remains true and correct as of such Date of Delivery.
(ii) A certificate of each of the Selling Shareholders, dated such Date of Delivery, confirming that the certificate delivered on the Closing Date pursuant to Section 6(g) hereof remains true and correct as of such Date of Delivery.
(iii) If requested by the Representatives, the favorable opinion and negative assurance letter of Wachtell, Lipton, Roxxx & Kaxx, counsel for the Company, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(b) hereof.
(iv) If requested by the Representatives, the favorable opinion of Joxxxx X. XxXxxx, Executive Vice President, General Counsel and Secretary of the Company, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(c) hereof.
(v) If requested by the Representatives, the favorable opinion of (i) the Vice President, Global Head of Legal Corporate of Sanofi pursuant to the laws of France, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(d)(i) hereof and (ii) Weil, Gotshal & Maxxxx XLP, counsel for the Selling Shareholders, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(d)(ii) hereof.
(vi) If requested by the Representatives, the favorable opinion and negative assurance letter of Ropes & Grxx XLP, counsel for the Underwriters, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(e) hereof.
(vii) If requested by the Representatives, a letter from PricewaterhouseCoopers LLP in form and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 6(h) hereof, except that the “cut-off date” in the letter furnished pursuant to this paragraph shall be a date not more than three Business Days prior to such Date of Delivery.
(l) Prior to the Closing DateDate and each Date of Delivery (if any), 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing Date, the obligations of the several Underwriters to purchase the relevant Option Securities, and all other obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date or such Date of Delivery, as the case may be, by the Representatives. 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 6 shall be delivered at the office of Xxxxxx Ropes & Xxxxxxx LLPGrxx XLP, counsel for the Underwriters, at 0000 800 Xxxxxxxx Xxxxxx xx xxx XxxxxxxxXxxxxx, Xxx Xxxx, XX, Xxxxxxxxxxxxx 00000-0000, on the Closing Date. Such documents may be delivered via facsimile, electronic mail or other transmission method and any document so delivered shall be deemed to have been duly and validly delivered.
Appears in 1 contract
Samples: Underwriting Agreement (Regeneron Pharmaceuticals, 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 by the Commission.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form set forth in Exhibits A-1 and substance reasonably satisfactory to the RepresentativesA-2, respectively.
(c) The Representatives shall have received from Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer or an Assistant Treasurer principal financial officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 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 furnished to the Representatives a 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 and substance reasonably satisfactory to the Representatives.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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 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 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule V hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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, 2011, nothing came to their attention which caused them to believe that, with respect to the period subsequent to June 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 June 30, 2011 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from July 1, 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of PG&E Corporation’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New York, 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 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 Final Prospectus, and any supplement 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 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives Representative their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representative, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule II hereto.
(c) The Representatives Representative shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date and addressed to the RepresentativesRepresentative, 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 shall 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, 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, containing statements and information confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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, 2015, nothing came to their attention which caused them to believe that, with respect to the period subsequent to June 30, 2015, 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, 2015 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from July 1, 2015 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, net 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 shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; 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 Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions “Certain Ratios” 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, 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt or Pacific Gas and Electric Company’s securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New York, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. (i) The obligations of the Underwriters to purchase the Underwritten Securities 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, the Closing Date 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, and to the performance by the Company and the Selling Stockholder of their respective obligations hereunder and (ii) the obligations of the Underwriters to purchase the Option 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 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, and to the performance by the Company of its obligations hereunder and and, in each case, to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxxxxxx and Xxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date or any settlement date pursuant to Section 3 hereof, as applicable, and addressed to the Representatives Representatives, in a form and substance reasonably satisfactory to the Representatives.
(c) The Selling Stockholder shall have requested and caused Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Selling Stockholder, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, in a form reasonably satisfactory to the Representatives. 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 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 Stockholder and public officials.
(d) The Representatives shall have received from Winston & Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date or any settlement date pursuant to Section 3 hereof, as applicable, 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 the Selling Stockholder shall have furnished to such counsel such documents as they 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 Treasurer principal executive officer and the principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing DateDate or any settlement date pursuant to Section 3 hereof, as applicable, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendments or supplements or amendments thereto, as well as each electronic road show, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, 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).
(ef) The Company Selling Stockholder shall have furnished to the Representatives a certificate of the Company related to certain litigation disclosurescertificate, signed by the General Counsel principal executive officer and the principal financial or accounting officer of the CompanySelling Stockholder, dated the Closing Date, in form and substance reasonably satisfactory to the Representativeseffect 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 supplements or amendments thereto and this Agreement, and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(fg) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, 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 Time, the Closing DateDate and any settlement date pursuant to Section 3, 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 Company and its consolidated subsidiaries contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus. References Prospectus and any supplements or amendments thereto.
(h) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3, in form and substance satisfactory to the Representatives, containing statements customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of Fluid Handling contained in the Registration Statement, the Disclosure Package and the Final Prospectus in this paragraph (f) include and any supplement thereto at the date of the lettersupplements or amendments thereto.
(gi) 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 material adverse change or decrease specified in the certificate referred to in paragraph (e)(iii) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hj) 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 furnished to the Representatives a certificate of the principal financial or accounting officer of the Company, in his or her capacity as such, dated the Execution Time, Closing Date and any settlement date pursuant to Section 3 hereof, as applicable, in a form agreed between the Representatives and the Company, with respect to certain factual information included or incorporated by reference in the Disclosure Package.
(l) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section Rule 3(a)(62) under the Exchange Act) or any notice given public announcement by such organization 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 changerating.
(im) Prior 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 Closing DateRepresentatives.
(n) At the Execution Time, the Company shall have furnished to the Representatives such further information, certificates a letter substantially in the form of Exhibit A hereto from each officer and documents as director of the Representatives may reasonably requestCompany addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Winston & Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxx Xxxxxx, Xxx Xxxx, XX, 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Wachtell, Lipton, Xxxxx Xxxx & Xxxxxxxx LLPXxxx, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx X. XxXxxx, Executive Vice President, General Counsel and Secretary of the Company, his opinion, dated the Closing Date and addressed to the Representatives.
(d) The Selling Shareholders shall (i) have furnished to the Representative an opinion of the Vice President, Global Head of Legal Corporate of Sanofi pursuant to the laws of France, dated the Closing Date and addressed to the Representatives, and (ii) have requested and caused Weil, Gotshal & Xxxxxxx Xxxxxx LLP, counsel for the Selling Shareholders, to have furnished to the Representatives their opinion pursuant to the laws of the United States, dated the Closing Date and addressed to the Representatives.
(e) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such legal their opinion and negative assurance letter, dated the Closing 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 such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they shall 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 Treasurer or an Assistant Treasurer Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements 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 Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(eg) The Company Representatives shall have furnished to the Representatives received a certificate of the Company related to certain litigation disclosures, signed by the General Counsel each of the CompanySelling Shareholders, dated the Closing Date, in form and substance reasonably satisfactory to the Representativeseffect that the representations and warranties of such 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 such 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.
(fh) 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, containing statements and information of the type customarily ordinarily 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 Disclosure Package Registration Statement and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. References to the Final Prospectus in this paragraph (fh) include any supplement thereto at the date of the such letter.
(gi) 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)Time, there shall not have been (iii) any material adverse change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (iv) any change, or any development involving a reasonably foreseeable prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hj) Subsequent to At the Execution Timedate of this Agreement, there the Representatives shall not have been any decrease received an agreement substantially in the rating form of Exhibit A hereto signed by each of the Selling Shareholders.
(k) In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company and the Selling Shareholders contained herein and the statements in any certificates furnished by the Company, any of its subsidiaries and the Selling Shareholders hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:
(i) A certificate of the Company’s debt securities , signed 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 decrease in any such rating or of a possible change in any such rating that does not indicate the direction Chief Financial Officer of the possible changeCompany, dated such Date of Delivery, confirming that the certificate on the Closing Date pursuant to Section 6(f) hereof remains true and correct as of such Date of Delivery.
(ii) A certificate of each of the Selling Shareholders, dated such Date of Delivery, confirming that the certificate delivered on the Closing Date pursuant to Section 6(g) hereof remains true and correct as of such Date of Delivery.
(iii) If requested by the Representatives, the favorable opinion and negative assurance letter of Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(b) hereof.
(iv) If requested by the Representatives, the favorable opinion of Xxxxxx X. XxXxxx, Executive Vice President, General Counsel and Secretary of the Company, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(c) hereof.
(v) If requested by the Representatives, the favorable opinion of (i) the Vice President, Global Head of Legal Corporate of Sanofi pursuant to the laws of France, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(d)(i) hereof and (ii) Weil, Gotshal & Xxxxxx LLP, counsel for the Selling Shareholders, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(d)(ii) hereof.
(vi) If requested by the Representatives, the favorable opinion and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(e) hereof.
(vii) If requested by the Representatives, a letter from PricewaterhouseCoopers LLP in form and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 6(h) hereof, except that the “cut-off date” in the letter furnished pursuant to this paragraph shall be a date not more than three Business Days prior to such Date of Delivery.
(l) Prior to the Closing DateDate and each Date of Delivery (if any), 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing Date, the obligations of the several Underwriters to purchase the relevant Option Securities, and all other obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date or such Date of Delivery, as the case may be, by the Representatives. 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 6 shall be delivered at the office of Xxxxxx Ropes & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 000 Xxxxxxxx Xxxxxx xx xxx XxxxxxxxXxxxxx, Xxx Xxxx, XX, Xxxxxxxxxxxxx 00000-0000, on the Closing Date. Such documents may be delivered via facsimile, electronic mail or other transmission method and any document so delivered shall be deemed to have been duly and validly delivered.
Appears in 1 contract
Samples: Underwriting Agreement (Sanofi)
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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused (i) Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., U.S. counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letterits opinion, dated the Closing Date and addressed to the Representatives Underwriters, substantially in the form attached hereto as Annex A, and substance reasonably satisfactory (ii) Xxxxx Xxxxx (UK) LLP, U.K. counsel for the Company, to have furnished to the Representatives.Representatives its opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form attached hereto as Annex B.
(c) The Representatives shall have received from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date and addressed to the RepresentativesUnderwriters, 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 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 Treasurer principal executive or an Assistant Treasurer financial officer and the principal accounting officer or another executive officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 Company has complied with all the agreements set forth herein and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), 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 disclosed in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a 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 KPMG 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)comfort letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably 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 contained or incorporated by reference in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change or decrease specified in the comfort letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 disclosed in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of the Company or any of the Company’s its debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under the Exchange Act) or any notice given of any intended or or, except with respect to the Company’s receipt of notice of a negative watch, 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.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 0000 Xxxxxx xx xxx Xxxxxxxx00 Xxxx Xxxxxx, Xxx Xxxx, XX, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Ensco PLC)
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 Final Prospectus, and any supplement 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 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule II hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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 December 31, 2011, nothing came to their attention which caused them to believe that, with respect to the period subsequent to December 31, 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 December 31, 2011 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from January 1, 2012 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, net 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions “Certain Ratios” 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, 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt or Pacific Gas and Electric Company’s securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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 changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New York, 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 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 Final Prospectus, and any supplement thereto, Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period required prescribed for such filing by Rule 424(b)the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet Final Term Sheet contemplated by Section 5(b5(a) hereto hereof 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 period 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 part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission.; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction;
(b) The Company Underwriters shall have requested received on the Closing Date an opinion and caused negative assurance letter of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Underwriters. Such opinion and negative assurance letter shall be rendered to the Underwriters at the request of the Company and shall so state therein. The Company intends and agrees that Xxxxxxxx & Xxxxx LLP is authorized to rely upon all of the representations made by the Company in this Agreement in connection with rendering its opinions pursuant to this subsection;
(c) The Underwriters shall have received on the Closing Date an opinion of the vice president and secretary of the Company in form and substance satisfactory to the Underwriters;
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 Pricing 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 shall reasonably request for the purpose of enabling them to pass upon such matters.;
(de) The Company shall have furnished On the date of the Prospectus at a time prior to the Representatives a certificate execution of this Agreement, at 9:30 a.m., New York City time on the Company, signed by effective date of any post-effective amendment to the Treasurer or an Assistant Treasurer Registration Statement filed subsequent to the date of the Company, dated this Agreement and also at the Closing Date, Deloitte & Touche LLP shall furnish to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 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 furnished to the Representatives a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Company, dated the Closing Date, Underwriters in form and substance reasonably satisfactory to the Representatives.
(f) The Company shall have requested Underwriters and caused PricewaterhouseCoopers LLP to have furnished to the Representativestheir counsel, 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, a letter containing statements and information of the type customarily ordinarily included in accountants’ accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information contained with respect to the Company included or incorporated by reference in the Disclosure Package Pricing Prospectus and the Final Prospectus. References Prospectus dated as of the date hereof and as of the Closing Date, respectively; provided that such letter shall use a “cut-off” date for the procedures referenced therein no earlier than two business days prior to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.delivery;
(gf) Subsequent to the Execution Time or, if earlier, execution and delivery of this Agreement and prior to 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)Closing Date, there shall not have been occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the businesscondition, financial position or results of otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, except as from that set forth in or contemplated the Pricing Prospectus that, in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, is so material and adverse as to make it impractical or inadvisable impracticable to proceed with the public offering or the delivery of the Securities as on the terms and in the manner contemplated by in the Registration Statement Prospectus and this Agreement;
(exclusive g) On or after the Applicable Time, other than any downgrade, notice of any amendment thereof)intended or potential downgrading of, or any review for a possible change consisting of, a “one notch” downgrade by either of S&P Global Ratings (“S&P”) and/or Xxxxx’x Investor Services (“Moody’s”) in (x) the Disclosure Package and rating accorded the Final Prospectus Company or any of the securities of the Company or any of its subsidiaries or (exclusive of any amendment or supplement thereto).
(hy) Subsequent to the Execution Timerating outlook for the Company, there shall not have been occurred any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) downgrading, or any notice given of any intended or potential decrease in any such rating downgrading or of any review for a possible change in any such rating that does not indicate the direction of the possible change.change by S&P or Moody’s in (i) the rating accorded the Company or any of the securities of the Company or any of its subsidiaries or (ii) the rating outlook for the Company;
(h) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to the Clearstream or Euroclear systems in Europe; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or the occurrence of any other calamity or crisis involving the United States; or (v) any change in national or international financial, political or economic conditions, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus;
(i) Prior The Company shall have complied with the provisions of Section 5(c) hereof with respect to the Closing Date, furnishing of prospectuses on the Business Day next succeeding the date of this Agreement; and
(j) The Company shall have furnished or caused to be furnished to the Representatives such further informationat the Closing Date a certificate, certificates dated the Closing Date and documents as signed by an officer of the Company, on behalf of the Company, reasonably satisfactory to the Representatives may reasonably requestas to the accuracy of the representations and warranties of the Company herein at and as of such Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to the matters set forth in subsections (a), (f) and (g) of this Section. If any of the conditions specified in this Section 6 8 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation cancelation 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 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, in substantially the form and substance reasonably satisfactory to the Representatives.attached hereto as Exhibit A.
(c) The Representatives shall have received from 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 Selling Shareholder shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxxxxx Xxxx, as counsel for the Selling Shareholder, 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 C.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such legal their opinion and negative assurance letter, dated the Closing 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 such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they shall 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements 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 Effectmaterial adverse effect on the condition (financial or otherwise), 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).
(eg) The Company Representatives shall have furnished to the Representatives received a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the CompanySelling Shareholder, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.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;
(fh) The Company shall have requested and caused PricewaterhouseCoopers 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 customarily ordinarily 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 Disclosure Package Registration Statement and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. References to the Final Prospectus in this paragraph (fh) include any supplement thereto at the date of the such letter.
(gi) 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)Time, there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (i) any change, or any development involving a reasonably foreseeable prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hj) Subsequent to [reserved]
(k) At the Execution Timedate of this Agreement, there the Representatives shall not have been any decrease received an agreement substantially in the rating form of Exhibit D hereto signed by the Selling Shareholder.
(l) In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company and the Selling Shareholder contained herein and the statements in any certificates furnished by the Company, any of its subsidiaries and the Selling Shareholder hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:
(i) A certificate of the Company’s debt securities , signed 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 decrease in any such rating or of a possible change in any such rating that does not indicate the direction Chairman of the possible changeBoard or the President and the principal financial or accounting officer of the Company, dated such Date of Delivery, confirming that the certificate on the Closing Date pursuant to Section 6(f) hereof remains true and correct as of such Date of Delivery.
(iii) A certificate of the Selling Shareholder, dated such Date of Delivery, confirming that the certificate delivered on the Closing Date pursuant to Section 6(g) hereof remains true and correct as of such Date of Delivery.
(iii) If requested by the Representatives, the favorable opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(b) hereof.
(iv) If requested by the Representatives, the favorable opinion of Xxxxxx X. Xxxxxxxx, Deputy General Counsel and Managing Director of the Company, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(c) hereof.
(v) If requested by the Representatives, the favorable opinion of Wachtell, Lipton, Xxxxx & Xxxx, as counsel for the Selling Shareholder, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(d) hereof.
(vi) If requested by the Representatives, the favorable opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(e) hereof.
(vii) If requested by the Representatives, a letter from Deloitte & Touche LLP in form and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 6(h) hereof, except that the “cut-off date” in the letter furnished pursuant to this paragraph shall be a date not more than three Business Days prior to such Date of Delivery.
(m) Prior to the Closing DateDate and each Date of Delivery (if any), 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 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing Date, the obligations of the several Underwriters to purchase the relevant Option Securities, and all other obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date or such Date of Delivery, as the case may be, by the Representatives. 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 6 6 shall be delivered at the office of Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxx., Xxx Xxxx, XX, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (PNC Financial Services 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 DateDate of Delivery, 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused furnished to the Representatives the written opinion of Xxxxx Xxxx & Xxxxxxxx LLPXxx Xxxxx XXXX, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date of Delivery and addressed to the Representatives Underwriters, in the form and substance reasonably satisfactory to the Representatives.attached hereto as Exhibit A.
(c) The Representatives shall have received from Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date of Delivery 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing DateDate of Delivery, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained in this Agreement are true and correct on and as of the Closing Date of Delivery with the same effect as if made on the Closing Date of Delivery and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed complied with or satisfied at or prior to the Closing DateDate of Delivery;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse EffectChange, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company Representatives shall have furnished to received on the Representatives date hereof a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Companyletter, 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 Datedate hereof, in form and substance satisfactory to the Representatives, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and information of the type customarily 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 Disclosure Package Registration Statement and the Final Prospectus. References On the Date of Delivery, the Representatives shall have received from PricewaterhouseCoopers LLP, independent public accountants, a letter dated the Date of Delivery to the Final Prospectus effect that they reaffirm the statements made in the letter specified in the first sentence of this paragraph (f) include any supplement thereto at the date of the lettere).
(gf) 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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position prospects, earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) 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 in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ih) Prior to the Closing DateDate of Delivery, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably requestrequest in order to evidence or confirm the accuracy of the Company’s representations and warranties set forth herein, the performance by the Company of its obligations hereunder to be performed at or before the Date of Delivery, and the fulfillment of the conditions set forth herein. If any of the conditions specified in this Section 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 counsel 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 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 by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 000 X Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, Xxxxxxxxxx, X.X. 00000, on the Closing DateDate of Delivery.
Appears in 1 contract
Samples: Underwriting Agreement (Coca-Cola Consolidated, 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:
(a) The Final Prospectus, and any supplement thereto, shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto hereof, 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Faegre Drinker Xxxxxx & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter10b-5 statement, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably satisfactory substantially the forms agreed to prior to the Representativesdate hereof.
(c) The Company shall have requested and caused its General Counsel, Xxxx X. Xxxxxx, to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form agreed to prior to the date hereof.
(d) The Representatives shall have received from Xxxx, Gotshal & Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer or an Assistant Treasurer Chief Financial Officer and the General Counsel of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change, or any development involving a prospective material adverse change, in or affecting the business, business prospects, financial condition or results of operations of the Company and its subsidiaries considered 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 theretoamendments or supplements thereto after the date hereof).
(e) The Company shall have furnished to the Representatives a 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 At the date hereof and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished furnish 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)Representatives letters, dated respectively as of the Execution Time date hereof and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information Representatives of the type customarily included described in accountants’ “comfort letters” PCAOB Statement on Auditing Standards AS 6101.
(g) At the date hereof and at the Closing Date, the Company shall have furnished to underwriters each Representative a certificate addressed to each Representative of its Chief Financial Officer with respect to the financial statements and certain financial information data contained or incorporated by reference in the Disclosure Package and the Final Prospectus. References , providing “management comfort” with respect to the Final Prospectus such information, in this paragraph (f) include any supplement thereto at the date of the letterform and substance reasonably satisfactory to each Representative.
(gh) 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 or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in Section 6(f) hereof or (ii) any change, or any development involving a prospective material adverse change, in or affecting the business, business prospects, financial position condition or results of operations of the Company and its subsidiaries, taken subsidiaries considered 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent Except as set forth in the Disclosure Package, subsequent to the Execution Applicable 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 in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) The Securities shall be eligible for clearance and settlement through DTC.
(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxx Xxxxxx, Xxx Xxxx, XX, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Zimmer Biomet 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, in substantially the form and substance reasonably satisfactory to the Representatives.attached hereto as Exhibit A.
(c) The Representatives shall have received from 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 Selling Shareholder shall have requested and caused Wachtell, Lipton, Xxxxx & Xxxxxxx Xxxx, as counsel for the Selling Shareholder, 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 C.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such legal their opinion and negative assurance letter, dated the Closing 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 such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they shall 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements 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 Effectmaterial adverse effect on the condition (financial or otherwise), 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).
(eg) The Company Representatives shall have furnished to the Representatives received a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the CompanySelling Shareholder, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.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;
(fh) The Company shall have requested and caused PricewaterhouseCoopers 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 customarily ordinarily 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 Disclosure Package Registration Statement and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. References to the Final Prospectus in this paragraph (fh) include any supplement thereto at the date of the such letter.
(gi) 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)Time, there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a reasonably foreseeable prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hj) Subsequent to [reserved]
(k) At the Execution Timedate of this Agreement, there the Representatives shall not have been any decrease received an agreement substantially in the rating form of Exhibit D hereto signed by the Selling Shareholder.
(l) In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company and the Selling Shareholder contained herein and the statements in any certificates furnished by the Company, any of its subsidiaries and the Selling Shareholder hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:
(i) A certificate of the Company’s debt securities , signed 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 decrease in any such rating or of a possible change in any such rating that does not indicate the direction Chairman of the possible changeBoard or the President and the principal financial or accounting officer of the Company, dated such Date of Delivery, confirming that the certificate on the Closing Date pursuant to Section 6(f) hereof remains true and correct as of such Date of Delivery.
(iii) A certificate of the Selling Shareholder, dated such Date of Delivery, confirming that the certificate delivered on the Closing Date pursuant to Section 6(g) hereof remains true and correct as of such Date of Delivery.
(iii) If requested by the Representatives, the favorable opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(b) hereof.
(iv) If requested by the Representatives, the favorable opinion of Xxxxxx X. Xxxxxxxx, Deputy General Counsel and Managing Director of the Company, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(c) hereof.
(v) If requested by the Representatives, the favorable opinion of Wachtell, Lipton, Xxxxx & Xxxx, as counsel for the Selling Shareholder, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(d) hereof.
(vi) If requested by the Representatives, the favorable opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, in form and substance satisfactory to the Representatives, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 6(e) hereof.
(vii) If requested by the Representatives, a letter from Deloitte & Touche LLP in form and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 6(h) hereof, except that the “cut-off date” in the letter furnished pursuant to this paragraph shall be a date not more than three Business Days prior to such Date of Delivery.
(m) Prior to the Closing DateDate and each Date of Delivery (if any), 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing Date, the obligations of the several Underwriters to purchase the relevant Option Securities, and all other obligations of the Underwriters hereunder may be cancelled canceled at, or at any time prior to, the Closing Date or such Date of Delivery, as the case may be, by the Representatives. 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 6 shall be delivered at the office of Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxx., Xxx Xxxx, XX, 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet sheets contemplated by Section 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance their letter, dated the Closing Date and addressed to the Representatives Representatives, in form substantially the forms attached hereto as Annexes A-1 and substance reasonably satisfactory to the RepresentativesA-2, respectively.
(c) The Company shall have requested and caused Xxxx X. Xxxxxx, Vice President, Secretary and Chief Legal Officer 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 hereto as Annex B.
(d) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 shall reasonably request for the purpose of enabling them to pass upon such matters.such
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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) 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 by the Commissionthreatened; and
(iiiiv) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), 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).
(e) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, 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, containing statements confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the type customarily included Company for the three-month periods ended January 31, 2007 and 2006, the three-month and six-month periods ended April 30, 2007 and 2006, and the three-month and nine-month periods ended July 31, 2007 and 2006, and as of July 31, 2007, in accountants’ “comfort letters” to underwriters accordance with respect to Statement on Auditing Standards No. 100, and 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 Disclosure Package Registration Statement, 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) 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 three-month periods ended January 31, 2007 and 2006, the three-month and six-month periods ended April 30, 2007 and 2006, and the three-month and nine-month periods ended July 31, 2007 and 2006, and as of July 31, 2007 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 stockholders, directors and audit, compensation and nominating and 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 October 31, 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 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;
(2) with respect to the period subsequent to July 31, 2007, 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 of the Company and its subsidiaries or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the July 31, 2007 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from August 1, 2007 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in net income or in total or per share amounts of net income of the Company and its subsidiaries, except 16 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 and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) 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 Final Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated by reference in Items 1, 5, 6, 7 and 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, and the information included in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included or incorporated by reference 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 (fe) include 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 (i) any material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 3(a)(62Rule 436(g) 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) The Company Representatives shall have requested received (i) the opinion and caused negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, outside counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, to the effect as set forth on Exhibit A hereto, (ii) the opinion of Xxxxxx Xxxxxx Morandi, Esq., the 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letter, dated the Closing 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or other), business, properties or results of operation of the Company and the 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) The Company Representatives shall have furnished to the Representatives a certificate of the Company related to certain litigation disclosuresreceived from PricewaterhouseCoopers, signed by the General Counsel of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
LLP (f) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the RepresentativesUS), at the Execution Time and at the Closing Date, “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, containing statements and information of the 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 Disclosure Package and the Final Prospectus. References , confirming that PricewaterhouseCoopers, LLP (US) is an independent registered accounting firm with respect to the Final Prospectus in this paragraph (f) include any supplement thereto at Company and its subsidiaries within the date meaning of the letterAct and the Exchange Act and the respective applicable rules and regulations adopted by the Commission and the PCAOB; provided that the “comfort” letter delivered on the Closing Date shall use a “cut-off” date no more than two Business Days prior to the Closing Date.
(gf) 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 material adverse change or decrease specified in the letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or 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).
(hg) 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 such term is defined for purposes of in Section 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.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx2400 Xxxxxxx Xxxxxx, Xxx Xxxx Xxxx, XX, XX 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx furnished to the Representatives:
(i) an opinion of Weil, Gotshal & Xxxxxxxx Mxxxxx LLP, counsel for to the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably satisfactory set forth on Exhibit A hereto; and
(ii) a letter of Weil, Gotshal & Mxxxxx LLP, dated the Closing Date and addressed to the Representatives, in form and substance set forth on Exhibit B hereto.
(c) The Representatives shall have received from Xxxxxx Fried, Frank, Harris, Sxxxxxx & Xxxxxxx Jxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), 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) The At or prior to the Closing Date, the Company shall have furnished executed and delivered to the Representatives a Underwriters an officers’ certificate for each series of the Company related Securities pursuant to certain litigation disclosures, signed by the General Counsel Section 3.01 of the Company, dated the Closing DateIndenture, in form and substance reasonably satisfactory to the RepresentativesUnderwriters, and the Indenture and such officers’ certificates shall be in full force and effect.
(f) The Company shall have requested and caused PricewaterhouseCoopers KPMG LLP to have furnished to the Representatives, at the Execution Time of Sale and at the Closing Date, letters 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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) 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) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any material adverse change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution TimeTime of Sale, 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 in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Weil, Gotshal & Xxxxxxx Mxxxxx LLP, counsel for the UnderwritersCompany, at 0000 Xxxxxx xx xxx Xxxxxxxx700 Xxxxx Xxxxxx, Xxx Xxxx, XX, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 by the Commission.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form set forth in Exhibits A-1 and substance reasonably satisfactory to the RepresentativesA-2, respectively.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 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 furnished to the Representatives a 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 and substance reasonably satisfactory to the Representatives.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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 or Rule 401(g)(2) under the Securities Act shall have been instituted or threatened by the Commissionthreatened.
(b) The Company shall have requested and caused XxXxxxxxx Will & Xxxxx Xxxx & Xxxxxxxx LLP, special counsel for the Company, to shall have furnished to the Representatives their legal Underwriters its written opinion and negative assurance letteraddressed to the Underwriters, dated the Closing Date and addressed to the Representatives Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form 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 satisfactory to the Representatives, substantially in the form of Annex II hereto;
(d) DLA Piper US LLP, local counsel for one of the Guarantors, shall have furnished to the Underwriters its written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form of Annex III hereto;
(e) The Representatives shall have received from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 Issuers shall have furnished to such counsel such documents as they shall 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 Company’s Treasurer or an Assistant Treasurer executive officer of the 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 signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, 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 contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiariesAugust 31, incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)2007, there has been no shall not have occurred any event that would have a Material Adverse Effect or any 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).
(e) The Company shall have furnished to the Representatives a 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.
(fg) The Company shall have requested and caused PricewaterhouseCoopers KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, 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, Representatives containing statements and information of the type customarily included in accountants’ accountants “comfort letters” to underwriters with respect to the financial statements of the Company; Vincor International Partnership and Vincor Finance, LLC; and ALCOFI INC. and certain financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(gh) 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 material adverse change or decrease in paragraph 5(b) or 6 of the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(ij) 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 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 counsel 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, LLP counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx00 Xxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably satisfactory to the Representatives. 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 Xxx X. Xxxxxx, 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 Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date 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 shall 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, Electronic Road Show used in connection with the offering of the SecuritiesNotes, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, 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 Effectmaterial adverse change in the condition (financial or otherwise), 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).
(e) The Company shall have furnished to the Representatives a 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 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, containing statements and information of the 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 Disclosure Package Registration Statement, Preliminary Prospectus and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 (i) any material adverse change 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(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 Xxxxx’x Investors Service, Inc. or Standard & Poor’s, a division of Section 3(a)(62) under the Exchange Act) XxXxxx-Xxxx Companies, Inc., or any notice given from these entities of any intended or potential a pending decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changerating.
(i) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xx Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XXXxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (NIKE, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities hereunder shall be subject subject, in their discretion, to the accuracy of the condition that all representations and warranties on the part and other statements of the Company contained Issuers and the Guarantor herein are, at and as of the Execution Time date hereof and the Closing DateTime of Delivery, to true and correct, the accuracy of condition that the statements of Issuers and the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its Guarantor shall have performed all their obligations hereunder theretofore to be performed, and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been 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 by the Commission.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives Underwriters shall have received from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date Time of Delivery and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the SecuritiesNotes, the Indenture, issuance of the Registration Statement, Guarantee and the Disclosure Package, the Final Prospectus (together with any supplement thereto) Indenture and other related matters as the Representatives Underwriters may reasonably require, and the Company Issuers shall have furnished to such counsel such documents as they shall reasonably request for the purpose of enabling them to pass upon such matters.;
(db) The Company Xxxxxxxx & Xxxxx LLP, counsel for the Issuers, shall have furnished to the Representatives a certificate of the Company, signed by the Treasurer or an Assistant Treasurer of the Companyyou their (i) written opinion, dated the Closing Time of Delivery, substantially in the form of Annex C hereto, (ii) negative assurance letter, dated the Time of Delivery, in form and substance reasonably satisfactory to you and (iii) on the Escrow Release Date, their written opinion, dated the Escrow Release Date, in form and substance reasonably satisfactory to you;
(c) Xxxxx Xxxxxx Xxxxxxxx LLP, special regulatory counsel to the effect that Issuers, shall have furnished to you their written opinion, dated the signer Time of such certificate Delivery, substantially in the form of Annex D hereto;
(i) Safari II, the Trustee and the Escrow Agent shall have carefully examined executed the Escrow Agreement, and the Representatives shall have received copies thereof and (ii) the Escrow Property shall have been deposited into the Escrow Account;
(e) On the date of the Time of Sale Information and also at the Time of Delivery, each of KPMG LLP, Deloitte & Touche LLP and Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you;
(i) None of the Issuers, the Guarantor, any of their respective subsidiaries or the Acquired Business shall have sustained since the date of the latest audited financial statements included in the Time of Sale Information and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Disclosure PackageTime of Sale Information and the Prospectus, and (ii) since the respective dates as of which information is given in each of the Registration Statement, the Final Time of Sale Information and the Prospectus (for clarification purposes, this excludes any amendment or supplement to the each of the Registration Statement, the Time of Sale Information and the Prospectus on or after the date of this Agreement) there shall not have been any supplements change in the capital stock, limited liability company interests, partnership interests or amendments theretolong-term debt of the Issuers, the Guarantor or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ or members’ equity, or results of operations of the Issuers, the Guarantor or any of their respective subsidiaries, otherwise than as well set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Underwriters so material and adverse as each electronic road show, if any, used in connection to make it impracticable or inadvisable to proceed with the offering or the sale or delivery of the Securities, Securities on the terms and in the manner contemplated in this Agreement and in the Time of Sale Information and the Prospectus;
(g) Subsequent to the earlier of the Time of Sale and the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Issuers by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Issuers (other than an announcement with positive implications of a possible upgrading);
(h) The Underwriters shall have received a counterpart of the Indenture that shall have been executed and delivered by a duly authorized officer of each of the Issuers and the Guarantor;
(i) The Notes shall be eligible for clearance and settlement through DTC;
(j) At the Time of Delivery, the Underwriters shall have received a written certificate executed by the Chairman of the Board, Chief Executive Officer or President of the Issuers and the Guarantor and the Chief Financial Officer or Chief Accounting Officer of the Issuers and the Guarantor, dated as of the Time of Delivery, certifying to the matters set forth in subsections (f) and (g) of this Section 8, and further to the effect that:
(i) the representations representations, warranties and warranties covenants of the Company contained in this Agreement Issuers and the Guarantor set forth herein were true and correct as of the date hereof and are true and correct as of the Time of Delivery with the same force and effect as though expressly made on and as of the Closing Date Time of Delivery;
(ii) the Registration Statement has become effective under the Securities Act and no order suspending the effectiveness of the Registration Statement is in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act is pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus has been timely filed with the same effect as if made on Commission under the Closing Date Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information have been complied with; and
(iii) each of the Issuers and the Company has Guarantor have 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;Time of Delivery.
(iik) The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued shall be in effect, and no proceedings proceeding for that purpose have been instituted orsuch purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Company’s knowledge, Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and
(iiil) since On or before the date Time of Delivery, the most recent consolidated financial statements of Underwriters and counsel for 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 Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company Underwriters shall have furnished received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the Representatives a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Company, dated the Closing Date, in form issuance 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, 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 delivery sale of the Securities as contemplated by herein, or in order to evidence the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating accuracy of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes representations and warranties, or the satisfaction of Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreementor agreements, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Dateherein contained.
Appears in 1 contract
Samples: Underwriting Agreement (Charter Communications, Inc. /Mo/)
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 Final Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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; 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxxxx & Xxxxxxxx Sterling LLP, counsel for the Company, to have furnished furnish to the Representatives their legal opinion and negative assurance letteran opinion, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably 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 Xxxxxx & Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for to the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date 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 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 Companycertificate, signed by the Treasurer principal financial or an Assistant Treasurer accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure PackageFinal Prospectus, the Final Prospectus Disclosure Package and any amendments or supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, thereto and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; threatened, and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and 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).
(e) The Company shall have furnished to the Representatives a 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 On the date hereof, the Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished furnish to the Representatives, at Representatives a letter dated 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 Datedate hereof, 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 customarily ordinarily 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) On the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives a letter dated the Closing Date, affirming the statements made in the comfort letter referred to in Section 6(f).
(h) 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 amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease in the amounts specified in the letter referred to in paragraph (f) of this Section 6; or (ii) any change, or any development involving a prospective material adverse change, in or affecting the business, properties, financial position condition or 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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 amendment or supplement thereto).
(hi) Subsequent to the Execution Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(ij) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 will be delivered at the office of Xxxxxx Xxxxx Xxxx & Xxxxxxx LLPXxxxxxxx, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx450 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 00000X.X. 00017, 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal 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 Xxxxx Xxxxxxx, Managing Director, her 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 & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing 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 such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements 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 Effectmaterial adverse effect on the condition (financial or otherwise), 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) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, 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, containing statements and information of the type customarily ordinarily 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 Disclosure Package Registration Statement and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the such 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)Time, there shall not have been (i) any material adverse 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 reasonably foreseeable prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, XX, 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 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 4 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Class A Common Stock, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) The Company shall have requested and caused Xxxxx Xxxx Wxxxxx, Xxxxxx & Xxxxxxxx Wxxxxxxx (New York) LLP, special Mxxxxxxx Islands counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letterwritten opinion, dated the Closing 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 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 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 furnished to the Representatives a 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 , substantially 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 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 Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(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 Section 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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.that:
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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule V hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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, 2010, nothing came to their attention which caused them to believe that, with respect to the period subsequent to September 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 September 30, 2010 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from October 1, 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration 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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of PG&E Corporation’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(bi) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx Hogan Lovells US LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably satisfactory to the Representatives.
(cii) The Company shall have requested and caused Xxxxx, Xxxxxx & Harcourt LLP, counsel for the Company with respect to matters of Canadian law, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(iii) The Company shall have requested and caused Xxxx & Associates PLLC, as counsel for the Company with respect to intellectual property matters, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(i) The Representatives shall have received from Xxxxxx Xxxxxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteropinion, dated the Closing 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 request for the purpose of enabling them to pass upon such matters.
(ii) The Representatives shall have received from Xxxxx, Xxxxxxx & Xxxxxxx LLP, counsel for the Underwriters with respect to matters of Canadian law, their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, 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.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Treasurer Chairman of the Board or an Assistant Treasurer the principal executive officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show, if any, roadshow used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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) 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, 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 supplement thereto).
(e) The Company shall have furnished to the Representatives a 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 the Accountant 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)letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(f) The Company shall have furnished to the Representatives, containing statements at the Execution Time and information at the Closing Date, certificates of the type customarily included in accountants’ “comfort letters” to underwriters Company dated respectively as of the Execution Time and as of the Closing Date, with respect to the financial statements and certain financial information contained data, signed by the principal financial or incorporated by reference accounting officer of the Company, in the Disclosure Package form and the Final Prospectus. References substance satisfactory to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letterRepresentatives.
(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 material adverse 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 material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 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) 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 FINRA, upon review, if any, of the terms of the offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(j) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the Company listed on Schedule V hereto addressed to the Representatives. The Company will use its best efforts to enforce the terms of each Lock-Up Agreement and will issue stop-transfer instructions to the transfer agent for the Common Shares with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(k) The Company shall not have received an objection from the Exchange with respect to the listing of additional shares notification that it filed with the Exchange in connection with the Securities and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) Neither the Company nor its Subsidiaries have any debt securities or preferred stock that are rated by any “nationally recognized statistical rating agency” (as defined in Section 3(a)(62) of the Exchange Act). If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Xxxxxxxxx & Xxxxxxx Xxxxxxx, LLP, counsel for the Underwriters, at 0000 The New York Times Building, 000 Xxxxxx xx xxx XxxxxxxxXxxxxx, Xxx Xxxx, XX, 00000, XX 00000 (or such other place as mutually may be agreed upon) on or before the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Mind Medicine (MindMed) 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal 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 Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date 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 shall 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 Treasurer or an Assistant Treasurer Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained in this Agreement that are not qualified by materiality are true and correct in all material 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference 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 Effectmaterial adverse effect on the business, properties, management, financial position, shareholders’ equity, results of operations or prospects 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 theretothereto that has not been made part of the Disclosure Package).
(eh) The Company shall have furnished to the Representatives a 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[Reserved].
(fi) The Company shall have requested and caused PricewaterhouseCoopers Ernst & Young LLP to have furnished to the Representatives, Representatives at the Execution Time a letter dated as of the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives)a letter, dated respectively as of the Execution Time and as of the Closing Date, 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 audited and unaudited financial statements and certain financial information contained or incorporated by reference in the Disclosure Package Preliminary Prospectus, the Prospectus and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letterRegistration Statement.
(gj) 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 theretothereto that has not been made part of the Disclosure Package), there shall not have been (i) any material adverse change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position position, shareholders’ equity or results of operations of the Company and its subsidiaries, subsidiaries taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement theretothereto that has not been made part of the Disclosure Package) the effect of which is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or 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).
(hk) 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 in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(il) [Reserved].
(m) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 & Xxxxxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx600 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet sheets contemplated by Section 5(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; . The Registration Statement shall have become effective under the Act 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxxxxxx and Xxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Annex A.
(c) The Company shall have requested and caused Xxxxxxxxx X. Marius, Vice President, Secretary and Chief Legal Officer for the Company, to have furnished to the Representatives in form his opinion, dated the Closing Date and substance reasonably satisfactory addressed to the Representatives., in substantially the form attached hereto as Annex B.
(cd) The Representatives shall have received from Xxxxxx O’Melveny & Xxxxxxx Xxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing DateDate in which such officers, to the effect that the signer of such certificate have carefully examined the Registration Statementafter reasonable investigation, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, and this Agreement and shall state that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), 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).
(e) The Company shall have furnished to the Representatives a 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 Deloitte & Touche LLP to have furnished to the Representatives, (i) at the Execution Time and at Time, a letter dated the Closing Date, letters (which may refer date hereof addressed to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing DateUnderwriters, 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 audited and unaudited financial statements and certain financial information contained or incorporated by reference in the Disclosure Package Registration Statement, the Preliminary Prospectus and the Final ProspectusProspectus and (ii) at the Closing Date, a letter dated such date, in form and substance satisfactory to the Representatives, to the extent that they reaffirm the statements made in the letter furnished by them pursuant to the foregoing clause (i) of this paragraph (f), 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. References to the Final Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 3(a)(62Rule 436(g) under the Exchange Act) or and there shall not have been 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 O’Melveny & Xxxxxxx Xxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx0 Xxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx & Xxxxxxxx Xxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letteropinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form and substance reasonably satisfactory to the Representativesset forth in Schedule V hereto.
(c) The Representatives shall have received from Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board, the Chief Executive Officer, the President or an Assistant Treasurer any Senior Vice President and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(e) The Company shall have furnished to the Representatives a 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 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 confirming that they are independent accountants within the meaning of the type customarily included Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in accountants’ “comfort letters” to underwriters with respect to effect that:
(i) in their opinion the audited financial statements and certain financial information contained statement schedules included or incorporated by reference in the Disclosure Package Registration Statement, 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, 2009, nothing came to their attention which caused them to believe that, with respect to the period subsequent to March 31, 2009, 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, 2009 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, or for the period from April 1, 2009 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, net 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 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration 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 the “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 (fe) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change, change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of PG&E Corporation’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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 changerating.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 Skadden, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxFour Times Square, Xxx XxxxNew York, XX, 00000New 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 Shares to be delivered at the Time of Delivery shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time Applicable Time, the date hereof and the Closing DateTime of Delivery, 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 Final Prospectus, and any supplement thereto, Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period required prescribed for such filing by Rule 424(b)the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(b5(a) hereto hereof, 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 part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission.; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, 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 satisfactory to the Representatives.
(c) The Representatives Underwriters shall have received from Xxxxxx Xxxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date and addressed to the Representativesdate of such Time of Delivery, 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 Underwriters may reasonably require; Xxxxxxxx & Xxxxxxxx LLP may rely as to matters governed by Georgia Law, upon the opinions of the General Counsel of the Company and King & Spalding LLP delivered pursuant to Sections 6(c) and 6(d), respectively;
(c) The General Counsel of the Company shall have furnished to you his written opinion, dated the date of such counsel such documents as they shall reasonably request for Time of Delivery, in substantially the purpose form of enabling them to pass upon such matters.Annex I(a) hereto;
(d) The Company King & Spalding LLP, counsel for the Company, shall have furnished to the Representatives a certificate of the Company, signed by the Treasurer or an Assistant Treasurer of the Companyyou their written opinion, dated the Closing Date, to the effect that the signer date of such certificate have carefully examined Time of Delivery, in substantially the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering form of the Securities, and this Agreement and that:
(iAnnex I(b) the representations and warranties of the Company contained 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 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 Datehereto;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened by the Commission; and
(iii) since the date of the most recent consolidated financial statements 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 Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to the Representatives a certificate of the Company related to certain litigation disclosures, signed by the General Counsel of the Companyyou letters, 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 respective dates of the Representatives), dated respectively as of the Execution Time and as of the Closing Datedelivery thereof, in form and substance satisfactory to the Representativesyou, 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 Pricing Disclosure Package and the Final Prospectus. References to ;
(i) Neither the Final Prospectus in this paragraph (f) include Company nor any supplement thereto at of its Significant Subsidiaries shall have sustained since the date of the letter.
latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (gii) Subsequent to since the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Pricing Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any material adverse change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective material adverse change, in or affecting the businessgeneral affairs, management, financial position position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole, except otherwise than as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) Pricing Prospectus, the effect of which which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof), so material and adverse as to make it impractical impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus;
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization”, as contemplated that term is defined by the Registration Statement Commission for purposes of Section 3(a)(62) of the Exchange Act, and (exclusive of any amendment thereof)ii) no such organization shall have publicly announced that it has under surveillance, the Disclosure Package and the Final Prospectus (exclusive of any amendment outlook, watch or supplement thereto).
(h) Subsequent to the Execution Timereview, there shall not have been any decrease in the with possible negative implications, its rating of any of the Company’s debt securities or preferred stock;
(h) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any “nationally recognized statistical rating organization” other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (as defined for purposes of Section 3(a)(62) under the Exchange Activ) or any notice given of any intended or potential decrease (v) in any such rating or of a possible change in any such rating that does not indicate the direction judgment of the possible change.Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus;
(i) Prior The Company shall have filed the Articles of Amendment with the Secretary of State of the State of Georgia prior to the Closing Date, the Time of Delivery; and
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company satisfactory to you as to the Representatives accuracy of the representations and warranties of the Company herein at and as of such further informationtime, certificates as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and documents (f) of this Section and as the Representatives to such other matters as you may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal Representative the opinion of Xxxxxxx Xxxxx, Senior Vice President and negative assurance letterGeneral Counsel and Xxxxxx X. Xxxxx, Corporate Counsel of the Company, dated the Closing Date and addressed to the Representatives in form and substance reasonably satisfactory Representative, to the Representativeseffect that:
(i) each of the Company and its subsidiaries has been duly organized and is validly existing and is in good standing under the laws of the jurisdiction in which it is chartered or organized with full power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except in each case as would not, singly or in the aggregate, have a Material Adverse Effect;
(ii) each Issuer has the power and authority to execute and deliver this Agreement, the Indenture and the Securities and to perform its obligations thereunder;
(iii) all the outstanding shares of capital stock of each Significant Subsidiary that is a corporation have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Final Prospectus, all outstanding shares of capital stock of the Significant Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iv) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus; and the Securities being sold hereunder by the Company are duly listed and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution on the NYSE
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in any Preliminary Prospectus and the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required;
(vi) neither the execution and delivery of this Agreement, the Indenture, the issue and sale of the Securities nor the consummation of any other of the transactions contemplated by this Agreement nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of the Guarantors pursuant to, (x) the charter or by-laws of the Company or any of the Guarantors, (y) the terms of any agreement that is listed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2016 or any subsequent filing by the Company under the Exchange Act or any other indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or the Guarantors is a party or bound or to which its or their property is subject that is known to us, or (z) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Guarantors of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Guarantors or any of its or their properties, except, in the case of clause (y) or (z), as would not, singly or in the aggregate, have a Material Adverse Effect;
(vii) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(viii) neither the Company nor any Guarantor is or, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will be an “investment company” as defined in the Investment Company Act of 1940, as amended. In rendering such opinion, such counsel may assume as to matters involving the application of laws of any jurisdiction other than the State of Colorado and the General Corporation Law of the State of Delaware (collectively, the “Subject States’ Laws”) and the Federal laws of the United States, to the extent they deem proper and specified in such opinion, that insofar as the opinions expressed relate to matters governed by state law other than the Subject States’ Laws, the relevant laws of such other states, and their application to such matters, are and would be the same as the laws which would be applicable to such matters if such agreement were governed by and construed and enforced in accordance with the laws (other than the law governing conflict of law matters) of the State of Colorado. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx & Xxxxxx & Xxxxxxx LLPLLC, counsel for the UnderwritersIssuers, such legal opinion and negative assurance lettershall have furnished to the Representative an opinion, dated the Closing 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 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 Treasurer or an Assistant Treasurer of the Company, dated the Closing DateRepresentative, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations Registration Statement has become effective under the Act; all required filings pursuant to Rule 424(b) under the Act have been made in the manner and warranties of within the Company contained 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 Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior time period required by such Rule; to the Closing Date;
knowledge of such counsel, (iii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission, and (ii) no proceedings for that purpose have been instituted or, to the Company’s knowledge, or threatened by the Commission; and
(iii) since and the date Registration Statement as of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference in the Disclosure Package time it became effective 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).
(e) The Company shall have furnished to the Representatives a 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, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to its date (other than the financial statements statements, the related notes and certain schedules and other financial information and statistical data, including, without limitation, all pro forma financial data, contained or incorporated by reference therein or omitted therefrom, as to which such counsel express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the applicable respective rules thereunder;
(ii) the statements included in the Disclosure Package and the Final Prospectus. References to the Final Preliminary Prospectus in this paragraph (f) include 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 material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position or 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 Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is in the reasonable judgment of the Representatives (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 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).
(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 Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease heading “Certain United Stated Federal Income Tax Considerations” fairly summarize the matters therein described in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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.material respects;
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The several 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commission.
(b) The Company shall have requested and caused Xxxxx Xxxx Xxxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letterstatement, dated the Closing Date and addressed to the Representatives in form and substance reasonably satisfactory Representatives, to the Representativeseffect set forth in Schedule V hereto. In rendering such opinion, such counsel may rely (A), without independent investigation, as to matters of Dutch law, upon the opinion of Prof. Dr. X.X. van Ginneken, Dutch legal advisor to the Company, rendered pursuant to Section 6(c) and (B) as to matters of fact, to the extent they deem proper, on officers of the Company and upon information obtained from other sources believed by them to be responsible. 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 Prof. Dr. X.X. van Ginneken, internal Dutch legal advisor to the Company and Niels van der Weijde, internal Dutch tax counsel to the Company, to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, to the effect set forth in Schedule VI hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than The Netherlands, 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 officers of the Company and upon information obtained from other sources believed by them to be responsible. References to the Final Prospectus in this paragraph (c) shall also include any supplements thereto at the Closing Date.
(d) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP[—], counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Company’s Chief Executive Officer or an Assistant Treasurer of the CompanyGroup Treasurer, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since there has been no material adverse change in the date general affairs, management, financial position, stockholders’ equity or results of the most recent consolidated financial statements operations of the Company and its consolidated subsidiaries, incorporated by reference taken as a whole, whether or not arising from transactions in the Disclosure Package and the Final Prospectus (exclusive ordinary course of any supplement thereto)business, there has been no Material Adverse Effect, except as from that set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a 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 Underwriters shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representativesreceived, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more on each of the Representatives), dated respectively as date of the Execution Time and as of the Closing Date, a letter dated the date of the Execution Time or the Closing Date, as the case may be, in form and substance satisfactory to the Representatives, from the independent auditors who have audited the financial statements of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus, containing statements and information of the type customarily 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 into the Disclosure Package Registration Statement and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include 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 thereofthereof filed after the Execution Time) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse decrease in the capital stock (other than through the exercise of options under currently existing stock option plans or as a result of the share repurchase program publicly announced as of the date hereof) or any increase in the long-term debt of the Company in excess of US$1 billion or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businessgeneral affairs, management, financial position position, stockholders’ equity or 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 amendment or supplement thereto) the effect of which is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 3(a)(62) under the Exchange Act) Standard & Poor’s Ratings Services or Xxxxx’x Investors Service, Inc. 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) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 will be delivered at the office of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters[—], at 0000 Xxxxxx xx xxx Xxxxxxxx[—], Xxx Xxxx, XX, 00000, on by the Closing Datedate when such documents are required to be delivered.
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 Final Prospectus, and any supplement 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 5(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 by the Commissionthreatened.
(b) The Company Representatives shall have requested and caused received from Xxxxxx Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their legal written opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx 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 & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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, the Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President or the Treasurer or an Assistant Treasurer and by the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, Road Show used in connection with the offering of the Securities, and this Agreement and that:
(i) i. the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) . since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, 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, 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 furnished to the Representatives a 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 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)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 and certain financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(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 material adverse change, or any development involving a prospective material adverse change, change in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hi) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of PG&E Corporation’s or the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ij) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 by physical or electronic means to the office of Xxxxxx Xxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto 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 by the Commissionthreatened.
(b) The Company shall have requested and caused (i) Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., U.S. counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letterits opinion, dated the Closing Date and addressed to the Representatives Underwriters, substantially in the form and substance reasonably satisfactory attached hereto as Annex A, (ii) Xxxxx Xxxxx (UK) LLP, U.K. counsel for the Company, to have furnished to the Representatives.Representatives its opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form attached hereto as Annex B and (iii) Xxxxxxxxx and May, special U.K. tax counsel for the Company, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Underwriters, to the effect set forth in Annex C.
(c) The Representatives shall have received from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing Date and addressed to the RepresentativesUnderwriters, 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 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 Treasurer principal executive or an Assistant Treasurer financial officer and the principal accounting officer or another executive officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 Company has complied with all the agreements set forth herein and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), 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 disclosed in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a 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 KPMG 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)comfort letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably 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 contained or incorporated by reference in the Disclosure Package and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(gf) 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 material adverse change or decrease specified in the comfort letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 disclosed in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of the Company or any of the Company’s its debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of in Section 3(a)(62) under the Exchange Act) or any notice given of any intended or or, except with respect to the Company’s receipt of notice of a negative watch, 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.
(ih) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 0000 Xxxxxx xx xxx Xxxxxxxx00 Xxxx Xxxxxx, Xxx Xxxx, XX, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Ensco PLC)
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 Time, 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) The Company shall have requested and caused Xxxxx Ropes & Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives Representative their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives Representative, substantially in the form attached as Exhibits B-1 and substance reasonably satisfactory to the RepresentativesB-2.
(c) The Representatives Company shall have requested and caused Xxxxxx Hall & Xxxxxxx LLP, intellectual property counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, substantially in the form attached hereto as Exhibit C.
(d) The Representative shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal their opinion and negative assurance letter, dated the Closing Date and addressed to the RepresentativesRepresentative, 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 shall 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 the Treasurer or an Assistant Treasurer President and Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements amendment or amendments supplement thereto, as well as each electronic road show, if any, show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included 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).
(ef) The Company shall have furnished to the Representatives Representative a certificate of the Company related to certain litigation disclosures, signed by the General Counsel Secretary’s Certificate of the Company, in form and substance reasonably satisfactory to counsel to the Underwriters and customary for the type of offering contemplated by this Agreement.
(g) The Company shall have furnished to the Representative a certificate, dated the such Closing Date, of its Chief Financial Officer, or an officer acting in a similar capacity, in form and substance reasonably satisfactory to the RepresentativesRepresentative.
(fh) The Company shall have requested and caused PricewaterhouseCoopers Ernst & Young LLP to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, 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 RepresentativesRepresentative, 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 substantially in the Disclosure Package and the Final Prospectus. References to the Final Prospectus form as set forth in this paragraph (f) include any supplement thereto at the date of the letter.Exhibit D.
(gi) 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 material adverse change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations properties of the Company and its subsidiariesCompany, taken as a wholewhether 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(hj) Prior to the Closing Date, the Company shall have filed with the Secretary of State of the State of Delaware the Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock, substantially in the form attached hereto as Exhibit E.
(k) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(l) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62Rule 436(g) 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.
(im) Prior The Underwriters shall have received copies, duly executed by the Company and the Warrant Agent, of the Warrant Agreement. There shall exist no event or condition which would constitute a default or an event of default under the Warrant Agreement.
(n) The Conversion Shares and the Warrant Shares 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 Closing DateRepresentative, subject to the official notice of issuance.
(o) At the Execution Time, the Company shall have furnished to the Representatives such further informationRepresentative a letter substantially in the form of Exhibit A hereto from each officer, certificates director and documents specified stockholders, as set forth in Schedule III, of the Representatives may reasonably requestCompany addressed to the Representative. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel 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 & Xxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, 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 by the Commissionthreatened.
(b) The Company Representatives shall have requested received (i) the opinion and caused negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, outside counsel for the Company, to have furnished to the Representatives their legal opinion and negative assurance letter, dated the Closing Date and addressed to the Representatives 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 satisfactory to the Representatives.
(c) The Representatives shall have received from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such legal opinion and negative assurance letteror opinions, dated the Closing 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 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 Treasurer Chairman of the Board or an Assistant Treasurer the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer 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, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company contained 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 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 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 by the Commissionthreatened; and
(iii) since the date of the most recent consolidated financial statements of the Company and its consolidated subsidiaries, incorporated by reference included in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or other), business, properties or results of operation of the Company and the 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) The Company Representatives shall have furnished to the Representatives a certificate of the Company related to certain litigation disclosuresreceived from PricewaterhouseCoopers, signed by the General Counsel of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
LLP (f) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the RepresentativesUS), at the Execution Time and at the Closing Date, “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, containing statements and information of the 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 Disclosure Package and the Final Prospectus. References , confirming that PricewaterhouseCoopers, LLP (US) is an independent registered accounting firm with respect to the Final Prospectus in this paragraph 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 that the “comfort” letter delivered on the Closing Date shall use a “cut-off” date no more than two Business Days prior to the Closing Date.
(f) include any supplement thereto The Representatives shall have received from Ernst & Young LLP, at the date Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to the Representatives), dated respectively as of the letterExecution 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) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letters referred to in paragraphs (e), (f) and (g) of this Section 6 or (ii) any change, or any development involving a prospective material adverse change, in or affecting the businesscondition (financial or otherwise), financial position earnings, business or results of operations 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 is which, in any case referred to in clause (i) or (ii) above, is, in the reasonable sole judgment of the Representatives (other than a defaulting Underwriter under Section 9 hereof)Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering offering, sale or 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).
(hi) 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 such term is defined for purposes of in Section 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.
(ij) 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 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be 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 0000 Xxxxxx xx xxx Xxxxxxxx00 Xxxx Xxxxxx, Xxx Xxxx, XX, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Equinix Inc)
