Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 4 contracts

Samples: Underwriting Agreement (Gores Holdings VI, Inc.), Underwriting Agreement (Gores Holdings VI, Inc.), Underwriting Agreement (Gores Holdings VI, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section ‎3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxxx & Xxxxxx ~~LLP~~L.L.P., counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions and negative assurance letter, ~~each~~ each, dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, ~~each~~ each, dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) 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~~Date or settlement date (as applicable); (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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxx Xxxxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~February 8, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~February 10, ~~2020~~2021, ~~provided~~ provided, however, that the cutoff date shall not be more than two business days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e‎(e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been ~~(i)~~ any change or decrease specified in the letter or letters referred to in paragraph (e‎(e) of this Section 6 ‎6 or ~~(ii)~~ any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i‎(i) or ~~(ii~~‎(ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the ~~Insider Letters and~~ Sponsor’s Subscription Agreement, the Founder’s Subscription Agreement, the Founder’s Unit Issuance Agreement, the Warrant Subscription Agreement, the Registration Rights Agreement, the Insider Letter and the Administrative Support Agreement. (k) [Intentionally omitted.] (l) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~‎5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ‎6 shall be delivered at the office of ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP., counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 4 contracts

Samples: Underwriting Agreement (Beard Energy Transition Acquisition Corp.), Underwriting Agreement (Beard Energy Transition Acquisition Corp.), Underwriting Agreement (Beard Energy Transition Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Xxxxxx, ~~Gotshal~~ Xxxx & ~~Xxxxxx~~ Xxxxxxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Ellenoff Xxxxxxxx & ~~Xxxx~~ Schole LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the ~~Company~~Company (in each case, solely in their capacity as an officer of the Company and not in their individual capacity), dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ E&Y to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company ~~for the period from June 29~~as of January 26, ~~2020 (date of inception) through July 24, 2020~~2018, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, ~~operations,~~ operations or condition (financial or otherwise) ~~or prospects~~ of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq~~ The NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Ellenoff Xxxxxxxx & ~~Xxxx~~ Schole LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxxxxx Xxxxxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 4 contracts

Samples: Underwriting Agreement (Trinity Merger Corp.), Underwriting Agreement (Trinity Merger Corp.), Underwriting Agreement (Trinity Merger Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal & Xxxxxx~~ Eversheds Sxxxxxxxxx (US) LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes & Xxxx~~ Rxxx Xxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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,~~ or threatened; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Mxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~February 12, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~February 25, ~~2020~~2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly ~~listed~~ listed, subject to notice of ~~issuance~~ issuance, on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Services Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes & Xxxx~~ Rxxx Xxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~500 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Axx Xxxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 3 contracts

Samples: Underwriting Agreement (Colombier Acquisition Corp.), Underwriting Agreement (Colombier Acquisition Corp.), Underwriting Agreement (Colombier Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Exxxxxxx Gxxxxxxx & ~~Xxxxxx~~ Schole LLP, and and Ogier (Cayman) LLP, each counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Kxxxxxxx & ~~Xxxx~~ Exxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Mxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~July 25, ~~2020~~ 2024 (~~date of~~ inception) through ~~July 24~~August 16, ~~2020~~2024, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the~~ The Nasdaq ~~Capital~~ Global Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreements, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Services Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Kxxxxxxx & ~~Xxxx~~ Exxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~600 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx~~ Cxxxxxxxx X. ~~Xxxxx~~Xxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 3 contracts

Samples: Underwriting Agreement (Roman DBDR Acquisition Corp. II), Underwriting Agreement (Roman DBDR Acquisition Corp. II), Underwriting Agreement (Roman DBDR Acquisition Corp. II)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten~~ Firm Securities and the ~~Option~~ Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 4 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The Representatives shall have requested and received from ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each road show used in connection with the Offering, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~August 14, 2020 (~~date of~~ inception) through ~~July~~ August 24, 2020, ; provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this ~~paragraph (e~~Section 7(e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in ~~paragraph (e~~Section 7(e) ~~of this Section 6~~ hereof or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Offered Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription ~~Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant~~ Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the ~~opinions, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 7 shall be delivered at the office of ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx ~~Xxxx~~Xxxxxxx, ~~Xxx Xxxx~~ Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxx ~~X. Xxxxx~~and P. Xxxxxxxx Xxxxxxx, unless otherwise indicated herein, on the Closing ~~Date~~Date and any settlement date, as applicable.

Appears in 3 contracts

Samples: Underwriting Agreement (Cascade Acquisition Corp), Underwriting Agreement (Cascade Acquisition Corp), Underwriting Agreement (Cascade Acquisition Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal & Xxxxxx LLP~~DLA Piper LLP (US), counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The Representatives shall have received from ~~Ropes & Xxxx~~ Rxxx Xxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Mxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~February 5, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~March 11, ~~2020~~2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the ~~Warrant Subscription~~ Private Placement Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes & Xxxx~~ Rxxx Xxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~500 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Axx Xxxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 3 contracts

Samples: Underwriting Agreement (Parabellum Acquisition Corp.), Underwriting Agreement (Parabellum Acquisition Corp.), Underwriting Agreement (Parabellum Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Winston & ~~Xxxxxx~~ Sxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from ~~Ropes~~ Ellenoff Gxxxxxxx & ~~Xxxx~~ Schole LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ WSB to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~April 7, ~~2020~~ 2017 (date of inception) through ~~July 24~~April 13, ~~2020~~2017, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq~~ The NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(ll) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes~~ Ellenoff Gxxxxxxx & ~~Xxxx~~ Schole LLP, counsel for the Underwriters, at ~~0000~~ 1000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Sxxxxx Xxxxxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 3 contracts

Samples: Underwriting Agreement (Industrea Acquisition Corp.), Underwriting Agreement (Industrea Acquisition Corp.), Underwriting Agreement (Industrea Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Gxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Kxxxxxxx & ~~Xxxx~~ Exxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 co-Chief Executive ~~Officer~~ Officers and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Mxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~August 21, 2020 (~~date of~~ inception) through ~~July 24~~August 28, 2020, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the~~ The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Kxxxxxxx & ~~Xxxx~~ Exxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~600 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx~~ Cxxxxxxxx X. ~~Xxxxx~~Xxxxxx, Esq. and Axxxx X. Xxxxxxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 3 contracts

Samples: Underwriting Agreement (Roman DBDR Tech Acquisition Corp.), Underwriting Agreement (Roman DBDR Tech Acquisition Corp.), Underwriting Agreement (Roman DBDR Tech Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxxxxx & ~~Xxxxxx~~ Xxxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~August 12, ~~2020~~ 2019 (date of inception) through ~~July 24~~August 29, ~~2020~~2019, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On or prior to the ~~Effective~~ Closing Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the Trust Agreement, the Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Stockholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Support Agreement. (k) [Reserved]. (l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $6,000,000 of the purchase price for the Private Placement Warrants to be deposited into the Trust ~~Account~~Account and the remaining $3,250,000 to be paid to the Company. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx ~~Xxxxxxxx,~~ Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 3 contracts

Samples: Underwriting Agreement (Juniper Industrial Holdings, Inc.), Underwriting Agreement (Juniper Industrial Holdings, Inc.), Underwriting Agreement (Juniper Industrial 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 of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Vxxxxx & ~~Xxxxxx LLP~~Exxxxx L.L.P., counsel for the Company, to have furnished to the Representatives its ~~opinions~~ opinion and negative assurance ~~letter, each~~ letter (which may be made part of such opinion) dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from ~~Ropes~~ Cravath, Swaine & ~~Xxxx~~ Mxxxx LLP, counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurance ~~letter, each~~ letter dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each “road show” as defined in Rule 433(h) used in connection with the Offering and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of ~~the~~ such Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), 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~~ such Closing ~~Date~~Date or settlement date (as applicable); (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been ~~issued~~ issued, and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material adverse change or effect, nor any development involving a prospective material adverse change or effect, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have furnished to the Representatives a certificate signed by the Chief Executive Officer and another executive officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ the Auditor to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), comfort letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the ~~audited~~ financial statements of the Company ~~for~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020,~~ Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their ~~opinion~~ opinion, the ~~audited~~ financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this ~~paragraph (e~~Section 6(f) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been ~~(i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii)~~ any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ij) The Securities shall be duly ~~listed~~ listed, subject to notice of ~~issuance~~ issuance, on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreements, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Registration Rights Agreement, the Insider ~~Letters~~ Letter and the ~~Registration Rights~~ Administrative Support Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representatives have requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be ~~canceled~~ 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 Ropes~~ in electronic format to Cravath, Swaine & ~~Xxxx~~ Mxxxx LLP, counsel for the Underwriters, ~~at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,~~ Attention: ~~Xxxx X. Xxxxx~~Axxxxx Xxxxx (email: axxxxx@xxxxxxx.xxx) and C. Dxxxxx Xxxxxx (email: dxxxxxx@xxxxxxx.xxx), unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 3 contracts

Samples: Underwriting Agreement (Nabors Energy Transition Corp.), Underwriting Agreement (Nabors Energy Transition Corp.), Underwriting Agreement (Nabors Energy Transition 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,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Offered Notes: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or to the knowledge of the Company threatened, by the Commission. (b) ~~The~~ Counsel to each of the Company and the Issuer (who shall ~~have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for~~ be satisfactory to the ~~Company, to~~ Representative) shall have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative an opinion or opinions, ~~each~~ dated the Closing ~~Date~~ Date, in each case in form and ~~addressed~~ substance reasonably satisfactory to the ~~Representatives~~Representative, ~~in a form reasonably acceptable~~ relating to ~~the Representatives~~certain enforceability, securities law and security interest matters. (c) In-house counsel for the Company shall have furnished to the Representative an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representative. (d) The ~~Representatives~~ Representative shall have received from ~~Ropes & Xxxx LLP~~[___], counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the related Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities~~Offered Notes, the Registration Statement, the ~~Statutory Prospectus, the~~ Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as ~~they~~ the Representative may reasonably request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) ~~The Company~~ Counsel for the Indenture Trustee (who shall ~~have requested and caused KPMG~~ be satisfactory to the Representative) shall have furnished to the ~~Representatives, at the Execution Time and at the Closing Date, letters~~Representative an opinion, dated ~~respectively as of the Execution Time and as of~~ the Closing Date, in form and substance reasonably satisfactory to the ~~Representatives, confirming that they are a registered public accounting firm that is independent with respect~~ Representative. (g) Counsel for the Owner Trustee (who shall be satisfactory to the ~~Company within~~ Representative) shall have furnished to the ~~meaning of~~ Representative an opinion, dated the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, ~~as applicable~~in form and substance reasonably satisfactory to the Representative. (h) Counsel for the Company (who shall be satisfactory to the Representative) shall have furnished to the Representative an opinion, dated the Closing Date, in form and ~~stating in effect that:~~substance reasonably satisfactory to the Representative, relating to certain insolvency and bankruptcy matters and federal income tax matters. (i) ~~in their opinion~~ The Representative shall have received a letter, dated the ~~audited financial statements~~ Closing Date or such other date as may be agreed upon between the Representative and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, ~~excluding any questions of legal interpretation. References~~ from certified public accountants (who shall be satisfactory to the ~~Prospectus~~ Representative), substantially in ~~this paragraph (e) include any supplement thereto at~~ the ~~date of~~ form previously approved by the ~~letter~~Representative. (fj) ~~Subsequent to~~ The Offered Notes shall have received the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease ratings specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus. (gk) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Underwriter such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hl) ~~FINRA shall not have raised any objection with respect~~ Subsequent to the ~~fairness or reasonableness~~ date of the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market~~Prospectus, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 there shall not have been ~~fulfilled when and as provided~~ any material adverse change in ~~this Agreement,~~ the business or ~~if any~~ properties of the ~~opinions~~Company which in the Representative’s reasonable judgment, ~~negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to~~ after consultation with the ~~Representatives and counsel for~~ Company, materially impairs the ~~Underwriters, this Agreement and all obligations~~ investment quality of the ~~Underwriters hereunder may be canceled at,~~ Offered Notes so as to make it impractical or ~~at any time prior to,~~ inadvisable to proceed with the ~~Closing Date~~ public offering or the delivery of such Offered Notes as contemplated 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 Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing DateProspectus.

Appears in 3 contracts

Samples: Underwriting Agreement (Higher Education Funding I), Underwriting Agreement (Higher Education Funding I), Underwriting Agreement (Higher Education Funding I)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ hereunder, including, if applicable, the last sentence of Section 3(b) hereof, and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal & Xxxxxx~~ DLA Piper LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Company shall have requested and caused [•], counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (d) The Representatives shall have received from ~~Ropes & Xxxx~~ Proskauer Rose LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the Representatives a certificate signed by the Chief Financial Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the Chief Executive Officer of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect~~, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~. (eg) The Company shall have requested and caused ~~KPMG~~ Xxxxx Xxxxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~[•], ~~2020~~ 2021 (date of inception) through ~~July 24~~[•], ~~2020~~2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter. (fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, ~~except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents customary for transactions contemplated hereby as the Representatives may reasonably request. (hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ik) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the Representatives. (jl) On the ~~Effective Date~~date hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters~~ Letters, the Administrative Services Agreement and the Registration Rights Agreement. (km) At least one Business Day prior to the Closing ~~Date~~Date or the settlement date, as applicable, the Sponsor shall have caused the ~~purchase price for the~~ Private Placement ~~Warrants~~ Portion to be deposited into the Trust ~~Account~~Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the public offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered remotely by electronic exchange of documents or at the office of ~~Ropes & Xxxx~~ Proskauer Rose LLP, counsel for the Underwriters, at ~~0000~~ Xxxxxx ~~xx xxx Xxxxxxxx~~Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxxxx Xxxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 3 contracts

Samples: Underwriting Agreement (Navigation Capital Acquisition IX Corp.), Underwriting Agreement (Navigation Capital Acquisition VI Corp.), Underwriting Agreement (Navigation Capital Acquisition VIII Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Skadden, ~~Gotshal~~ Arps, Slate, Mxxxxxx & ~~Xxxxxx~~ Fxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives,~~ Representative in a form and substance reasonably ~~acceptable~~ satisfactory to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Weil, Gotshal & ~~Xxxx~~ Mxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and the Bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ Mxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June~~ April 29, ~~2020~~ 2015 (~~date of~~ inception) ~~through July 24~~to May 4, ~~2020~~2015, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission~~; and~~; (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and (iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), earnings, business or ~~prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (~~g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (~~h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq~~ NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement and each of the Insider ~~Letters and the Registration Rights Agreement~~Letters. (k~~) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l~~) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Weil, Gotshal & ~~Xxxx~~ Mxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~700 Xxxxx Xxxxxx, Xxx Xxxx, Xxx ~~Xxxx~~ Xxxx, 00000~~, Attention: Xxxx X. Xxxxx~~, unless otherwise indicated herein, on the Closing Date.

Appears in 3 contracts

Samples: Underwriting Agreement (Easterly Acquisition Corp.), Underwriting Agreement (Easterly Acquisition Corp.), Underwriting Agreement (Easterly Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Gxxxxxxxx Txxxxxx, ~~Gotshal & Xxxxxx~~ LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes & Xxxx~~ Rxxx Xxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Mxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~February 26, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~March 18, ~~2020~~2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider ~~Letters~~ Letter and the Registration Rights Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes & Xxxx~~ Rxxx Xxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~599 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, ~~Attention~~Xttention: ~~Xxxx X. Xxxxx~~Axx Xxxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Galata Acquisition Corp.), Underwriting Agreement (Galata Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten ~~Securities~~ Units and the Option ~~Securities~~Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Shearman & ~~Xxxx~~ Sterling LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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~~ one of its Chief Executive ~~Officer~~ Officers and ~~the~~ its principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) 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~~Date or settlement date (as applicable); (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; and (iii) there has not occurred any Material Adverse Effect, or any development involving a prospective Material Adverse Effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, since the date of the most recent financial statements included ~~in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated~~ in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~December 23, 2020 (date of inception) through ~~July 24~~December 31, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) On or prior to the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company, in form and substance satisfactory to the Representative, along with such additional supporting documentation as the Representative has requested in connection with the verification of the foregoing certificate. (h) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Administrative Services Agreement, the Warrant Purchase Agreement, the Insider ~~Letters~~ Letter, the Promissory Note and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust ~~Account~~Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) The ~~several obligations of the Underwriters to purchase Option Securities hereunder are subject~~ Company shall have furnished to the ~~delivery to the Representatives on the applicable Option Closing Date of the following: (i)~~ Representative a certificate signed by the ~~Chief Executive Officer and~~ Secretary or the ~~principal financial or accounting officer~~ Assistant Secretary of the Company, dated the ~~Option~~ Closing Date, ~~confirming~~ certifying (i) that the ~~certificate delivered on~~ Amended and Restated Certificate of Incorporation and Bylaws of the ~~Closing Date pursuant to Section 6(d) hereof remains~~ Company are true and ~~correct as of such Option Closing Date;~~ complete, have not been modified and are in full force and effect, (ii) ~~opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for~~ that the ~~Company, dated the Option Closing Date,~~ resolutions relating to the ~~Option Securities to be purchased on such Option Closing Date~~ Offering contemplated by this Agreement are in full force and ~~otherwise to the same~~ effect ~~as the opinion required by Section 6(b) hereof;~~ and have not been modified, (iii) ~~opinions~~ copies of all correspondence between the Company or its counsel and ~~negative assurance letter of Ropes & Xxxx LLP~~the Commission, ~~counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date~~ and ~~otherwise to the same effect as the opinion required by Section 6(c) hereof;~~ (iv) ~~a letter dated the Option Closing Date, in form and substance satisfactory~~ as to the ~~Representatives, from KPMG substantially~~ incumbency of the officers of the Company. The documents referred to in ~~the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date~~ such certificate shall ~~not~~ be ~~more than two business days prior~~ attached to such ~~Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities~~certificate. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Shearman & ~~Xxxx~~ Sterling LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx ~~X. Xxxxx~~Xxxxxxxxx Esq., unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 2 contracts

Samples: Underwriting Agreement (Forest Road Acquisition Corp. II), Underwriting Agreement (Forest Road Acquisition Corp. II)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Gxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ White & ~~Xxxx~~ Case LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Mxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~July 24, 2020 (~~date of~~ inception) through ~~July 24~~August 17, 2020, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the~~ The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ White & ~~Xxxx~~ Case LLP, counsel for the Underwriters, at ~~0000~~ 1000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Jxxx Xxxxxxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Seaport Global Acquisition Corp), Underwriting Agreement (Seaport Global Acquisition 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,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Note Offering: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or ~~threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for~~ to the knowledge of the Company, threatened by the Commission. b) Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Representatives) shall have furnished to the Representatives ~~its opinions and negative assurance letter~~an opinion or opinions, ~~each~~ dated the Closing ~~Date~~ Date, in each case in form and ~~addressed~~ substance reasonably satisfactory to the Representatives and counsel for the Representatives, relating to certain enforceability, securities law and security interest matters. c) In-house counsel for each of the Company and GE Capital shall have furnished to the Representatives an opinion, dated the Closing Date, in a form and substance reasonably ~~acceptable~~ satisfactory to the Representatives and counsel for the Representatives. (cd) The Representatives shall have received from ~~Ropes & Xxxx~~ Xxxxxxx XxXxxxxxx LLP, counsel for the ~~Underwriters~~Representatives, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities, the Registration Statement, the Statutory Prospectus~~Offered Notes, the Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as ~~they~~ the Representatives 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 ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signatory of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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;. f) Counsel for the Indenture Trustee (~~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,~~ who shall be satisfactory to the ~~Company’s knowledge, threatened; and (iii~~Representatives) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall ~~have requested and caused KPMG to~~ have furnished to the ~~Representatives~~Representatives an opinion, ~~at the Execution Time and at~~ dated the Closing Date, ~~letters~~in form and substance reasonably satisfactory to the Representatives. g) Counsel for the Owner Trustee (who shall be satisfactory to the Representatives) shall have furnished to the Representatives an opinion, dated ~~respectively as of~~ the ~~Execution Time~~ Closing Date, in form and substance reasonably satisfactory to the Representatives. h) Counsel for the Company (who shall be satisfactory to the Representatives) shall have furnished to the Representatives (i) opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, relating to certain bankruptcy matters and Federal income tax matters and (ii) a signed negative assurance letter, dated as of the Closing Date, in form and substance satisfactory to the Representatives, ~~confirming that they are a registered public accounting firm that is independent with respect~~ relating to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory~~ Preliminary Prospectus, the Prospectus and the ~~Prospectus~~ Ratings FWP. i) The Representatives shall have received a letter, dated the Closing Date or such other date as may be agreed upon between the Representatives and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, ~~excluding any questions of legal interpretation. References~~ from certified public accountants (who shall be satisfactory to the ~~Prospectus~~ Representatives), substantially in ~~this paragraph (e) include any supplement thereto at~~ the ~~date of~~ form previously approved by the ~~letter~~Representatives. (fj) ~~Subsequent to~~ The Offered Notes shall have received the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease ratings specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Ratings FWP. (gk) 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. (hl) ~~FINRA shall not have raised any objection with respect~~ Subsequent to the ~~fairness or reasonableness~~ date of the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market~~Prospectus, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 there shall not have been ~~fulfilled when and as provided~~ any material adverse change in ~~this Agreement,~~ the business or ~~if any~~ properties of the ~~opinions, negative assurance letters and certificates mentioned above or elsewhere~~ Company which 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~~ reasonable judgment of the ~~Underwriters hereunder may be canceled at~~Representatives, after consultation with the Company, materially impairs the investment quality of the Offered Notes so as to make it impractical or ~~at any time prior to,~~ inadvisable to proceed with the ~~Closing Date~~ public offering or the delivery of such Offered Notes as contemplated 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 Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing DateProspectus.

Appears in 2 contracts

Samples: Underwriting Agreement (CDF Funding, Inc.), Underwriting Agreement (CDF Funding, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten ~~Securities~~ Units and the Option ~~Securities~~Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions dated the Closing Date or settlement date (as applicable) and ~~negative assurance letter~~addressed to the Representative, ~~each~~ in a form reasonably acceptable to the Representative. (c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (cd) The ~~Representatives~~ Representative shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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~~ one of its Chief Executive ~~Officer~~ Officers and ~~the~~ its principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) 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~~Date or settlement date (as applicable); (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; and (iii) there has not occurred any Material Adverse Effect, or any development involving a prospective Material Adverse Effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~, there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~. (ef) The Company shall have requested and caused ~~KPMG~~ Xxxxx Xxxxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~[●], ~~2020 (date~~ 2021(date of inception) through ~~July 24~~[●], ~~2020~~2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) On or prior to the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company, in form and substance satisfactory to the Representative, along with such additional supporting documentation as the Representative has requested in connection with the verification of the foregoing certificate (i) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Administrative Services Agreement, the Unit Subscription Agreement, the Insider ~~Letters~~ Letter, the Advisory Agreement and the Registration Rights Agreement. (km) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the Sponsor shall have caused the applicable purchase price for the Private Placement ~~Warrants~~ Units to be deposited into the Trust ~~Account~~Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mo) The ~~several obligations of the Underwriters to purchase Option Securities hereunder are subject~~ Company shall have furnished to the ~~delivery to the Representatives on the applicable Option Closing Date of the following: (i)~~ Representative a certificate signed by the ~~Chief Executive Officer and~~ Secretary or the ~~principal financial or accounting officer~~ Assistant Secretary of the Company, dated the ~~Option~~ Closing Date, ~~confirming~~ certifying (i) that the ~~certificate delivered on~~ Amended and Restated Certificate of Incorporation and Bylaws of the ~~Closing Date pursuant to Section 6(d) hereof remains~~ Company are true and ~~correct as of such Option Closing Date;~~ complete, have not been modified and are in full force and effect, (ii) ~~opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for~~ that the ~~Company, dated the Option Closing Date,~~ resolutions relating to the ~~Option Securities to be purchased on such Option Closing Date~~ Offering contemplated by this Agreement are in full force and ~~otherwise to the same~~ effect ~~as the opinion required by Section 6(b) hereof;~~ and have not been modified, (iii) ~~opinions~~ copies of all correspondence between the Company or its counsel and ~~negative assurance letter of Ropes & Xxxx LLP~~the Commission, ~~counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date~~ and ~~otherwise to the same effect as the opinion required by Section 6(c) hereof;~~ (iv) ~~a letter dated the Option Closing Date, in form and substance satisfactory~~ as to the ~~Representatives, from KPMG substantially~~ incumbency of the officers of the Company. The documents referred to in ~~the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date~~ such certificate shall ~~not~~ be ~~more than two business days prior~~ attached to such ~~Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities~~certificate. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 Ropes & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx~~ 1211 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. ~~Xxxxx~~Xxxxx Esq., unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 2 contracts

Samples: Underwriting Agreement (Thunder Bridge Capital Partners III Inc.), Underwriting Agreement (Thunder Bridge Capital Partners III Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and ~~the~~ any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager 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); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) ~~The Company~~ At the Closing Date, the Representatives shall have ~~requested~~ received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and ~~caused Weil, Gotshal~~ Xxxxx & ~~Xxxxxx~~ Xxxxxxx LLP, counsel for the ~~Company~~Company and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, 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 ~~have furnished~~ 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 ~~Representatives its opinions~~ extent they deem proper, on certificates of responsible officers of the Company and ~~negative assurance letter, each dated~~ public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing ~~Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives~~Date. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ supplements or ~~supplement~~ amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date. (f) The Company shall have requested and caused ~~KPMG~~ 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, ~~confirming that they are a registered public accounting firm that is independent~~ containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the ~~Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited~~ financial statements and certain financial information of the Company ~~for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time~~ and LNR contained or ~~Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included~~ incorporated by reference in the Registration Statement, the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Final Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof~~), the Statutory Prospectus~~ ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), earnings, business or ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gh) 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. (hi) ~~FINRA shall not have raised any objection with respect~~ Prior to the ~~fairness or reasonableness~~ Closing Date, the shares of Common Stock issuable upon conversion of the ~~underwriting or other arrangements~~ Securities shall have been listed and admitted and authorized for trading on the NYSE, subject only to notice of ~~the transactions contemplated hereby~~issuance. (j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit C hereto from (i) ~~The Securities shall be duly listed subject to notice~~ each officer and director of ~~issuance on~~ the ~~Nasdaq Capital Market~~Company (other than Xxxxx Xxxxxxxxxx), ~~satisfactory evidence~~ (ii) each officer of ~~which shall have been provided~~ the Manager, Xxxxx Xxxxxxxx and Xxxxxx Xx Xxxx, and (iii) SPT Investment, LLC, in each case addressed to the Representatives. (jk) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives ~~executed copies~~ a letter substantially in the form of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: Exhibit D hereto from (i) ~~a certificate signed by~~ the ~~Chief Executive Officer~~ Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing DateXxxxx Xxxxxxxxxx, in ~~form and substance satisfactory~~ each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~Four Times Square, ~~Xxx Xxxx~~New York, ~~Xxx Xxxx 00000~~New York, ~~Attention: Xxxx X. Xxxxx, unless otherwise indicated herein~~10036-6522, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Starwood Property Trust, Inc.), Underwriting Agreement (Starwood Property Trust, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Akin Gump Xxxxxxx Xxxxx & ~~Xxxxxx~~ Xxxx LLP, counsel for the Company, to have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their opinion, ~~each~~ dated the Closing Date and addressed to the ~~Representatives,~~ Representative in a the form ~~reasonably acceptable to the Representatives~~attached as Exhibit A hereto. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes & Xxxx~~ Xxxxxxx XxXxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the ~~audited~~ unaudited interim financial ~~statements~~ information of the Company as of ___, 2010 and for the period ~~from June 29~~___, ~~2020~~ 2010 (~~date of~~ inception) ~~through July 24~~to ___, ~~2020~~2010, ~~provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable,~~ in accordance with Statement on Auditing Standards No. 100 and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form ~~in all material respects~~ with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; if any; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information as of ___, 2010 and for the period ___, 2010 (inception) to ___, 2010; carrying out certain specified procedures (but not an audit 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, if any, of the stockholders, directors and audit, governance and nominating committees of the Company; 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 ___, 2010, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus; and (ii2) with respect to the period subsequent to ___, 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 of the Company or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the ___, 2010 balance sheet included in the Registration Statement, the Statutory Prospectus and the Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; (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) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, ~~business, management, properties, assets, rights, operations, condition (financial~~ business or ~~otherwise) or prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall ~~be duly listed subject to notice of issuance~~ have been authorized for quotation on the ~~Nasdaq Capital Market~~OTC Bulletin Board, and satisfactory evidence of ~~which~~ such actions shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Services Agreement and each of the Insider ~~Letters and the Registration Rights Agreement~~Letters. (k) ~~At least one Business Day prior to~~ On or before the ~~Closing~~ Effective Date, the ~~Sponsor~~ Representative shall have ~~caused~~ received the ~~purchase price for the Private Placement Warrants to be deposited into the Trust Account~~Secondary Market Trading Survey from Xxxxxxx XxXxxxxxx LLP. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(gg) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes & Xxxx~~ Xxxxxxx XxXxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxx Xxxxxx, Xxx Xxxx, Xxx ~~Xxxx~~ Xxxx, 00000~~, Attention: Xxxx X. Xxxxx~~, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Hicks Acquisition CO II, Inc.), Underwriting Agreement (Hicks Acquisition CO II, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Xxxxxxx Xxxxxxx, ~~Gotshal & Xxxxxx~~ LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect~~, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~. (e) The Company shall have requested and caused KPMG to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~August 25, 2020 (date of inception) through ~~July 24~~September 2, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, ~~except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~NASDAQ, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the ~~Effective Date~~date hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the ~~purchase price for the~~ Private Placement ~~Warrants~~ Portion to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Yellowstone Acquisition Co), Underwriting Agreement (Yellowstone Acquisition Co)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxxxxx & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ (i) an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~August 10, 2020 (~~date of~~ inception) through ~~July 24~~August 21, 2020 and (ii) a review of the financial statements of the Company for the period from August 10, 2020 through [●], 2020, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the~~ The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreements, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, each of the Sponsor and X. Xxxxx Principal Investments LLC shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxxxxx & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx~~ Xxxxxxxxx X. ~~Xxxxx~~Xxxxxx, Esq. and Xxxxx X. Xxxxxxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Spartacus Acquisition Corp), Underwriting Agreement (Spartacus Acquisition Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from~~ June 291, ~~2020~~ 2015 (~~date of~~ inception) through ~~July 24~~June 12, ~~2020~~2015, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxxx Xxxxxx, ~~Xxx~~ Xxxx Xxxx, ~~Xxx Xxxx~~ Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxx and Xxxxxxx X. ~~Xxxxx~~Xxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Gores Holdings, Inc.), Underwriting Agreement (Gores 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 of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Sxxx Xxxxx Xxxxxxxx & ~~Xxxxxx~~ Lxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its ~~opinions and negative assurance letter, each~~ opinion dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ MxXxxxxxx Will & ~~Xxxx~~ Exxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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,~~ or threatened; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Mxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~February 18, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~September 30, ~~2020~~2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly ~~listed~~ listed, subject to notice of ~~issuance~~ issuance, on ~~the Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Services Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ MxXxxxxxx Will & ~~Xxxx~~ Exxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~Oxx Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Axx Xxxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Signal Hill Acquisition Corp.), Underwriting Agreement (Signal Hill Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives,~~ Representative in a form ~~reasonably acceptable~~ and substance satisfactory to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused Ogier, British Virgin Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in form and substance satisfactory to the Representative. (d) The Representative shall have received from ~~Ropes~~ Weil, Gotshal & ~~Xxxx~~ Xxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date,~~ Date to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have furnished to the Representatives a certificate signed by the Chief Financial Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company, and such other matters as the Representatives shall reasonably request. The documents referred to in such certificate shall be attached to such certificate. (g) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~January 14, ~~2020~~ 2015 (~~date of~~ inception) ~~through July 24~~to January 20, ~~2020~~2015, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission~~; and~~; (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and (iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter. (fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, ~~business, management, properties, assets, rights, operations, condition (financial~~ business or ~~otherwise) or prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) 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. (hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ik) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq~~ NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jl) On the ~~Effective~~ Closing Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the ~~Securities Assignment~~ Trust Agreement, the Founder’s Purchase Agreement, the ~~Warrant~~ Subscription Agreement and ~~the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies~~ each of the ~~Trust Agreement, the Warrant Agreement, the~~ Insider ~~Letters and the Registration Rights Agreement~~Letters. (km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $1,250,000 of the purchase price for the Private Placement ~~Warrants~~ Shares to be ~~deposited into~~ funded to the Company and the remainder to be funded to the Trust Account. (ln) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Weil, Gotshal & ~~Xxxx~~ Xxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx ~~Xxxx~~ Xxxx, 00000~~, Attention: Xxxx X. Xxxxx~~, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Atlantic Alliance Partnership Corp.), Underwriting Agreement (Atlantic Alliance Partnership Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and ~~the~~ any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager 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); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) ~~The Company~~ At the Closing Date, the Representatives shall have ~~requested~~ received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and ~~caused Weil, Gotshal~~ Xxxxx & ~~Xxxxxx~~ Xxxxxxx LLP, counsel for the ~~Company~~Company and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, 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 ~~have furnished~~ 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 ~~Representatives its opinions~~ extent they deem proper, on certificates of responsible officers of the Company and ~~negative assurance letter, each dated~~ public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing ~~Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives~~Date. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ supplements or ~~supplement~~ amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date. (f) The Company shall have requested and caused ~~KPMG~~ 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, ~~confirming that they are a registered public accounting firm that is independent~~ containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and certain financial ~~statement schedules included~~ information contained or incorporated by reference in the Registration Statement, the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Final Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof~~), the Statutory Prospectus~~ ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), earnings, business or ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gh) 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. (hi) ~~FINRA shall not have raised any objection with respect~~ Prior to the ~~fairness or reasonableness of~~ Closing Date, the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The~~ Securities shall ~~be duly~~ have been listed ~~subject to notice of issuance~~ and admitted and authorized for trading on the ~~Nasdaq Capital Market~~New York Stock Exchange, and satisfactory evidence of ~~which~~ such actions shall have been provided to the Representatives. (j) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives ~~executed copies~~ a letter substantially in the form of Exhibit C hereto from (i) each officer and director of the ~~Securities Assignment Agreement~~Company (other than Xxxxx Xxxxxxxxxx), (ii) each officer of the ~~Founder’s Purchase Agreement~~Manager, ~~the Warrant Subscription Agreement~~ Xxxxx Xxxxxxxx and ~~the Administrative Services Agreement. On or prior~~ Xxxxxx Xx Xxxx, and (iii) SPT Investment, LLC, in each case addressed to the ~~Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement~~Representatives. (k) At ~~least one Business Day prior to~~ the ~~Closing Date~~Execution Time, the ~~Sponsor~~ Company shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter substantially in the ~~applicable Option Closing Date~~ form of ~~the following:~~ Exhibit D hereto from (i) ~~a certificate signed by~~ the ~~Chief Executive Officer~~ Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing DateXxxxx Xxxxxxxxxx, in ~~form and substance satisfactory~~ each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx ~~Xxxx~~ Xxxx, 00000~~, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein~~-0000, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Starwood Property Trust, Inc.), Underwriting Agreement (Starwood Property Trust, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Xxxxxxxx Xxxxx, ~~Gotshal & Xxxxxx~~ LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes &~~ Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~February 9, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~March 25, ~~2020~~2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreements, the Insider ~~Letters~~ Letter and the Registration Rights Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes &~~ Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at ~~0000~~ 000 Xxxxx Xxxxxx ~~xx xxx Xxxxxxxx~~Xxxxxx, Xxxxxx-Xxxxx Xxxxx, Xxx ~~Xxxx~~Xxxxxxx, ~~Xxx Xxxx~~ Xxxxxxxxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxxxxxxx Xx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (AltEnergy Acquisition Corp), Underwriting Agreement (AltEnergy Acquisition Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxxxxx & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive ~~Officer~~ Officers and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~January 1, ~~2020~~ 2021 (~~date~~ commencement of ~~inception~~operations) through ~~July~~ February 24, ~~2020~~2021 and a review of the financial statements of the Company for the quarter ended March 31, 2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxxxxx & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx~~ Xxxxxxxxx X. ~~Xxxxx~~Xxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Apeiron Capital Investment Corp.), Underwriting Agreement (Apeiron Capital Investment Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ MxXxxxxxx Will & ~~Xxxxxx~~ Exxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives,~~ Representative in a the form ~~reasonably acceptable to the Representatives~~attached as Exhibit A hereto. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Akin Gump Sxxxxxx Hxxxx & ~~Xxxx~~ Fxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ Rxxxxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~August 2, ~~2020~~ 2013 (~~date of~~ inception) ~~through July 24~~to August 6, ~~2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable~~2013, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission~~; and~~; (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and (iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, ~~business, management, properties, assets, rights, operations, condition (financial~~ business or ~~otherwise) or prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) 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. (hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider ~~Letters and the Registration Rights Agreement~~Letters. (kl) On the Execution Date, the Company shall have caused to be duly executed and delivered a letter from each Participant, substantially in the form of Exhibit C hereto. (m) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be ~~deposited~~ funded into the Trust Account. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(kk) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Akin Gump Sxxxxxx Hxxxx & ~~Xxxx~~ Fxxx LLP, counsel for the Underwriters, at ~~0000~~ Oxx Xxxxxx ~~xx xxx Xxxxxxxx~~Xxxx, Xxx Xxxx, Xxx ~~Xxxx~~ Xxxx, 00000~~, Attention: Xxxx X. Xxxxx~~, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Levy Acquisition Corp), Underwriting Agreement (Levy Acquisition Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ WithumSmith to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~May 19, ~~2020~~ 2015 (~~date of~~ inception) through ~~July 24~~June 5, ~~2020~~2015, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, each of the Insider ~~Letters and~~ Letters, the Registration Rights Agreement and the Administrative Services Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $1,750,000 of the purchase price for the Private Placement Warrants to be ~~deposited~~ funded to the Company and the remainder to be funded into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxxx Xxxxxx, ~~Xxx~~ Xxxx Xxxx, ~~Xxx Xxxx~~ Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxx and Xxxxxxx X. ~~Xxxxx~~Xxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Global Partner Acquisition Corp.), Underwriting Agreement (Global Partner Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date or the settlement date, as the case may be, and addressed to the Representatives, in a form ~~reasonably acceptable~~ satisfactory to the Representatives. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or the settlement date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or the settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of ~~the Closing Date~~ such date with the same effect as if made on ~~the Closing Date~~ such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to ~~the Closing Date~~such 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date or the settlement date, as the case may be, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~January 24, 2020 (~~date of~~ inception) through ~~July 24~~[●], 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date or the settlement date, as the case may be, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market,~~ New York Stock Exchange satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Services Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or the settlement date, as the case may be, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be wired to the Company and the Company shall direct the trustee to deposit such funds into the Trust Account and to hold such funds in the Trust Account such that the cumulative amount deposited into the Trust ~~Account~~Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the Offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or the settlement date, as the case may be, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxxx Xxxxxx, ~~Xxx~~ Xxxxx 0000, Xxxx Xxxx, ~~Xxx Xxxx~~ Xxxxxxxxxx 00000, Attention: ~~Xxxx~~ Xxxxx X. ~~Xxxxx~~Xxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Fortress Value Acquisition Corp.), Underwriting Agreement (Fortress Value Acquisition 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,~~ Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein ~~as of~~ at the Execution ~~Time,~~ Time and the ~~Closing Date and any Option~~ 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & ~~Xxxxxx~~ Xxxxxxxx LLP, special counsel for the Company, to shall have furnished to the Representatives its ~~opinions~~ opinion and ~~negative assurance~~ letter, ~~each~~ dated the Closing Date and addressed to the Representatives, ~~in a form reasonably acceptable~~ substantially to the ~~Representatives~~effect set forth in Exhibits A and B hereto. (cb) The Representatives shall have received from ~~Ropes~~ Xxxxxx Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the ~~Securities~~Notes, the Indenture, the Registration Statement, the ~~Statutory Prospectus~~Disclosure Package, the Prospectus (~~together with any supplement thereto~~as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (dc) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or executive vice president and any of the chief financial officer, the treasurer and the principal ~~financial or~~ accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the ~~Registration Statement each Preliminary~~ Prospectus, ~~the Prospectus and~~ any amendment or supplement ~~thereto,~~ to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing ~~Date~~ 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 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; and (~~iii~~ii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there has been no ~~Material Adverse Effect~~event or occurrence that would reasonably be expected to result in a material adverse effect on the general affairs, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, except as set forth in or contemplated by the Disclosure Package and the Prospectus. (d) On the date hereof, the Representatives shall have requested and the Company shall have caused Deloitte & Touche LLP to furnish to the Representatives a comfort letter, dated the date hereof, in form and substance reasonably satisfactory to the Representatives, covering the financial information in the ~~Statutory Prospectus~~ Disclosure Package and ~~the Prospectus (exclusive of any supplement thereto)~~other customary information. (e) ~~The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at~~ On the Closing Date, ~~letters~~the Representatives shall have received from Deloitte & Touche LLP, a letter dated ~~respectively as of the Execution Time and as of the Closing Date~~such date, in form and substance reasonably satisfactory to the Representatives, ~~confirming~~ to the effect that they ~~are a registered public accounting firm~~ reaffirm the statements made in the letter furnished by them pursuant to subsection (d) of this Section 5, except that ~~is independent with respect~~ (i) it shall cover the financial information in the Prospectus and any amendment or supplement thereto and (ii) the specified date referred to therein for the carrying out of procedures shall be no more than three Business Days prior to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as ~~applicable, and stating in effect that: (i) in their opinion~~ the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the lettercase may be. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the ~~Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in ~~paragraph~~ paragraphs (d) and (e) of this Section 6 5; or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings~~financial condition, ~~business, management, properties, assets, rights,~~ results of operations, ~~condition (financial~~ business operations, assets or ~~otherwise) or prospects~~ liabilities of the ~~Company~~Company and its subsidiaries, ~~whether or not arising from transactions in the ordinary course of business~~taken as a whole, except as set forth in or contemplated in by the ~~Statutory Prospectus~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~ Prospectus, the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the ~~sole~~ reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~proceed with~~ market the ~~offering or delivery of the Securities~~ Notes as contemplated by the ~~Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (g) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Representatives shall have received counterparts, conformed as executed, thereof. (h) At the Closing Date, the Notes shall be eligible for clearance and settlement through DTC. (i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities 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) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 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~~ 5 will be delivered at the office of ~~Ropes~~ Xxxxxx Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, ~~counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx~~00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, ~~Attention: Xxxx X. Xxxxx, unless otherwise indicated herein,~~ on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (RR Donnelley & Sons Co), Underwriting Agreement (RR Donnelley & Sons Co)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Cadwalader, ~~Gotshal~~ Xxxxxxxxxx & ~~Xxxxxx~~ Xxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxxxxx & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 co-Chief Executive ~~Officer~~ Officers and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~January 19, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~September 30, ~~2020~~2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the~~ The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxxxxx & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx~~ Xxxxxxxxx X. ~~Xxxxx~~Xxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Roman DBDR Tech Acquisition Corp. III), Underwriting Agreement (Roman DBDR Tech Acquisition Corp. II)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes & Xxxx~~ Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29, 2020 (date of inception) through July 24, 2020~~[[·], provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. .] References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes & Xxxx~~ Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Gores Holdings III, Inc.), Underwriting Agreement (Gores Holdings III, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Ledgewood, ~~Gotshal & Xxxxxx LLP~~PC, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect~~, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~. (e) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~January 22, ~~2020~~ 2021 (date of inception) through ~~July 24~~January 25, ~~2020~~2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, ~~except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~NASDAQ, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the ~~Effective Date~~date hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Services Agreement, the Placement Unit Subscription Agreement, the Insider ~~Letters~~ Letter and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the ~~purchase price for the~~ Private Placement ~~Warrants~~ Portion to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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~~ offices of ~~Ropes~~ Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention Xxxx X. Xxxxxxxx and 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx~~ Xxxxxxxx X. ~~Xxxxx~~Xxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Belong Acquisition Corp.), Underwriting Agreement (Belong Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Winston & Xxxxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Ellenoff Xxxxxxxx & ~~Xxxx~~ Schole LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ (i) an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~April 24, ~~2020~~ 2019 (~~date of~~ inception) through ~~July 24~~April 30, ~~2020~~2019 and (ii) a review of the financial statements of the Company for the period from May 1, 2019 through June 30, 2019, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the~~ The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the Trust Agreement, Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the ~~Warrant~~ Unit Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement ~~Warrants~~ Units to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Ellenoff Xxxxxxxx & ~~Xxxx~~ Schole LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxxxxx Xxxxxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Netfin Acquisition Corp.), Underwriting Agreement (Netfin Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Dxxxx Xxxx & ~~Xxxxxx LLP~~Wxxxxxxx, counsel for the Company, to have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their opinion, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a the form ~~reasonably acceptable to the Representatives~~of Exhibit B hereto. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes & Xxxx~~ Bxxxxxx MxXxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary~~ Statement, the Statutory Prospectus, the Prospectus and any amendment or supplement thereto, and this ~~Agreement~~ Agreement, and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material adverse effect on the financial condition, prospects, earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Ernst & Young to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered ~~public accounting firm that is~~ independent ~~with respect to the Company~~ accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have ~~performed a review~~ not, during the periods covered by the financial statements included in the Registration Statement, Statutory Prospectus and Prospectus, provided to the Company any non-audit services, as such term is used in Section 10(A)(g) of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicableExchange Act, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission~~; and~~; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company, if any; 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, if any, of the stockholders, directors and audit, governance and nominating committees of the Company; 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 [·], 2007, nothing came to their attention which caused them to believe that, with respect to the period subsequent to [·], 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 or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the [·], 2007 balance sheet included in the Registration Statement, the Statutory Prospectus and the Prospectus, or for the period from [·], 2007 to such specified date there were any increases, as compared with [·], 2007 in net loss of the Company, except as disclosed in the Registration Statement as occurring or may occur, 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; (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) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with ~~the accounting records~~ supporting documentation of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), earnings, business or ~~prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) ~~FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i)~~ The Securities shall be duly ~~listed~~ listed, subject to notice of ~~issuance~~ issuance, on the ~~Nasdaq Capital Market~~American Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (ji) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Purchase Agreement, the Services Agreement, and each of the Insider ~~Letters~~ Letters. (j) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit C hereto from each officer and director of the Company and the ~~Registration Rights Agreement~~Founder addressed to the Representative. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending The entire $4,000,000 of proceeds from the sale of the ~~Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof~~ Initial Founder’s Warrants shall have been ~~issued as~~ deposited in the Trust Account in accordance with the terms of the ~~Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option~~ Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesPurchase Agreement. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes & Xxxx~~ Bxxxxxx MxXxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~300 Xxxx Xxxxxx, Xxx Xxxx, Xxx ~~Xxxx~~ Xxxx, 00000~~, Attention: Xxxx X. Xxxxx~~, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (GSC Acquisition Co), Underwriting Agreement (GSC Acquisition Co)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Skadden, ~~Gotshal~~ Arps, Slate, Mxxxxxx & ~~Xxxxxx~~ Fxxx LLP, U.S. counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives,~~ Representative in a the form ~~reasonably acceptable to the Representatives~~attached as Exhibit A hereto. (c) The ~~Representatives~~ Company shall have requested and caused Mxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit B hereto. (d) The Representative shall have received from ~~Ropes~~ Dxxxx Xxxx & ~~Xxxx~~ Wxxxxxxx LLP, U.S. counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (g) The Company shall have requested and caused ~~KPMG~~ Mxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~January 28, ~~2020~~ 2015 (~~date of~~ inception) ~~through July 24~~to March 2, ~~2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable~~2015, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission~~; and~~; (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and (iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter. (fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), earnings, business or ~~prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) ~~Prior to the Closing Date, the~~ The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Sponsor, signed by its managers and dated as of the Closing Date, certifying as to its constituent documents and resolutions relating to the authorization and performance of certain matters in connection with the Offering and as to the incumbency of such ~~further information, certificates and documents as the Representatives may reasonably request~~managers. (hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ik) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq~~ NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jl) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider ~~Letters and the Registration Rights Agreement~~Letters. (km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the total purchase price for the Private Placement Warrants to be ~~deposited~~ delivered to the Company so that the Company can fund the portion of the gross proceeds of the Private Placement Warrants required under Section 3(b) into the Trust ~~Account~~Account one Business Day prior to the Closing Date. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Dxxxx Xxxx & ~~Xxxx~~ Wxxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx ~~Xxxx~~ Xxxx, 00000~~, Attention: Xxxx X. Xxxxx~~, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (GP Investments Acquisition Corp.), Underwriting Agreement (GP Investments Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxxxxx & ~~Xxxxxx~~ Xxxxx LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Company shall have requested and caused Walkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form satisfactory to the Representatives. (d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (g) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~February 9, ~~2020~~ 2021 (date of inception) through ~~July 24~~February 10, ~~2020~~2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the ~~letter~~letters. (fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets~~, rights~~, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) 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. (hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (jl) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Founder’s Purchase Agreement, the ~~Warrant~~ Sponsor Subscription Agreement, the Securities Assignment Agreements, the Insider Letters, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (km) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement ~~Warrants~~ Shares to be deposited into the Trust ~~Account~~Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Ordinary Shares issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Ordinary Share as set forth on the cover of the Prospectus. (ln) No order preventing or suspending the sale of the ~~Units~~ Ordinary Shares in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Vector Acquisition Corp IV), Underwriting Agreement (Vector Acquisition Corp III)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten~~ 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 contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 4 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxxxxx & ~~Xxxxxx~~ Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) [Reserved] (d) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of ~~the Closing Date~~ such date with the same effect as if made on ~~the Closing Date~~ such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to ~~the Closing Date~~such 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ij) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Stockholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or a settlement date, as applicable, the ~~Sponsor~~ Company shall have caused proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust ~~Account~~Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the ~~opinions, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxxx Xxxxxx, ~~Xxx~~ Xxxxx 0000, Xxxx Xxxx, ~~Xxx Xxxx~~ Xxxxxxxxxx, 00000, Attention: ~~Xxxx~~ Xxxxx X. ~~Xxxxx~~Xxxx, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 2 contracts

Samples: Underwriting Agreement (Jaws Hurricane Acquisition Corp), Underwriting Agreement (Jaws Hurricane Acquisition Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The ~~Company~~ Representatives shall have ~~requested~~ received the opinion and ~~caused Weil~~letter, ~~Gotshal~~ dated as of the Closing Date or settlement date, as applicable, and addressed to the Representatives of Xxxxxxxx & ~~Xxxxxx~~ Xxxxxxxx LLP, counsel for the Company, ~~to have furnished to~~ in the ~~Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a~~ form ~~reasonably acceptable to the Representatives~~of Schedule IV hereto. (c) The Representatives shall have received from ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) 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~~Date or settlement date (as applicable); (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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~December 1, 2020 (date of inception) through ~~July 24~~December 7, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) ~~set forth~~ described in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in by the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (ji) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription ~~Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust~~ Agreement, the ~~Warrant~~ Forward Purchase Agreement, the Insider ~~Letters~~ Letter and the Registration Rights Agreement. (kj) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lk) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives ~~pursuant to Section 5(g) hereof~~ shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx~~ Xxxxx X. ~~Xxxxx~~Xxxxxx, Esq., unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 2 contracts

Samples: Underwriting Agreement (Thimble Point Acquisition Corp.), Underwriting Agreement (Thimble Point Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten ~~Securities~~ Units and the Option ~~Securities~~Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal & Xxxxxx~~ Pxxx Xxxxxxxx LLP, U.S. counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused Mxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form satisfactory to the Representative. (d) The Representative shall have received from Ropes & ~~Xxxx~~ Gxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief ~~Executive~~ Financial Officer ~~and the principal financial or accounting officer~~ of the Company, dated the Closing Date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have furnished to the Representative a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (g) The Company shall have requested and caused ~~KPMG~~ Mxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of December 18, 2020 and for the period from ~~June 29~~November 24, 2020 (date of inception) through ~~July 24~~December 18, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter. (fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) 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. (hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Warrants Purchase Agreement, Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Services Agreement. (km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust ~~Account~~Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or ~~facsimile~~ electronic mail confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & ~~Xxxx~~ Gxxx LLP, counsel for the Underwriters, at ~~0000~~ 1000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx~~ Pxxx X. ~~Xxxxx~~Xxxxx and Cxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Centricus Acquisition Corp.), Underwriting Agreement (Centricus Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes &~~ Xxxx Xxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ (i) an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~November 17, 2020 (~~date of~~ inception) through ~~July 24~~November 30, 2020, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (African Gold Acquisition Corp), Underwriting Agreement (African Gold Acquisition Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten ~~Securities~~ Units and the Option ~~Securities~~Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative, in a form satisfactory to the Representative. (d) The Representative shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief ~~Executive~~ Financial Officer ~~and the principal financial or accounting officer~~ of the Company, dated the Closing Date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have furnished to the Representative a certificate signed by the Secretary or the Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (g) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company as of October 5, 2020 and for the period from ~~June 29~~September 24, 2020 (date of inception) through ~~July 24~~October 5, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter. (fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gi) 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. (hj) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ik) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Placement Unit Subscription Agreement, Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Services Agreement. (km) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement ~~Warrants~~ Units to be deposited into the Trust ~~Account~~Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as net forth on the cover of the Prospectus. (ln) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. ~~Xxxxx~~Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Sports Ventures Acquisition Corp.), Underwriting Agreement (Sports Ventures Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and ~~the~~ any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager 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); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) ~~The Company~~ At the Closing Date, the Representatives shall have ~~requested~~ received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and ~~caused Weil, Gotshal~~ Xxxxx & ~~Xxxxxx~~ Xxxxxxx LLP, counsel for the ~~Company~~Company and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, 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 ~~have furnished~~ 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 ~~Representatives its opinions~~ extent they deem proper, on certificates of responsible officers of the Company and ~~negative assurance letter, each dated~~ public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing ~~Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives~~Date. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ supplements or ~~supplement~~ amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date. (f) The Company shall have requested and caused ~~KPMG~~ 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, ~~confirming that they are a registered public accounting firm that is independent~~ containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the ~~Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited~~ financial statements and certain financial information of the Company ~~for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time~~ and LNR contained or ~~Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included~~ incorporated by reference in the Registration Statement, the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Final Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof~~), the Statutory Prospectus~~ ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), earnings, business or ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gh) 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. (hi) ~~FINRA shall not have raised any objection with respect~~ Prior to the ~~fairness or reasonableness of~~ Closing Date, the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The~~ Securities shall ~~be duly~~ have been listed ~~subject to notice of issuance~~ and admitted and authorized for trading on the ~~Nasdaq Capital Market~~New York Stock Exchange, and satisfactory evidence of ~~which~~ such actions shall have been provided to the Representatives. (j) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives ~~executed copies~~ a letter substantially in the form of Exhibit C hereto from (i) each officer and director of the ~~Securities Assignment Agreement~~Company (other than Xxxxx Xxxxxxxxxx), (ii) each officer of the ~~Founder’s Purchase Agreement~~Manager, ~~the Warrant Subscription Agreement~~ Xxxxx Xxxxxxxx and ~~the Administrative Services Agreement. On or prior~~ Xxxxxx Xx Xxxx, and (iii) SPT Investment, LLC, in each case addressed to the ~~Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement~~Representatives. (k) At ~~least one Business Day prior to~~ the ~~Closing Date~~Execution Time, the ~~Sponsor~~ Company shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter substantially in the ~~applicable Option Closing Date~~ form of ~~the following:~~ Exhibit D hereto from (i) ~~a certificate signed by~~ the ~~Chief Executive Officer~~ Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing DateXxxxx Xxxxxxxxxx, in ~~form and substance satisfactory~~ each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~Four Times Square, ~~Xxx Xxxx~~New York, ~~Xxx Xxxx 00000~~New York, ~~Attention: Xxxx X. Xxxxx, unless otherwise indicated herein~~10036-6522, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Starwood Property Trust, Inc.), Underwriting Agreement (Starwood Property Trust, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ropes & ~~Xxxxxx~~ Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), 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~~Date or settlement date (as applicable); (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been ~~issued~~ issued, and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the ~~audited~~ financial statements of the Company ~~for~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020~~Statutory Prospectus and Prospectus, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their opinion the ~~audited~~ financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been ~~(i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii)~~ any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Insider ~~Letters~~ Letter and the Registration and Stockholder Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the Representatives, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representatives has requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be ~~canceled~~ 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 Ropes~~ in electronic format to Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, ~~at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,~~ Attention: ~~Xxxx X. Xxxxx~~Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 2 contracts

Samples: Underwriting Agreement (Climate Change Crisis Real Impact I Acquisition Corp), Underwriting Agreement (Climate Change Crisis Real Impact I Acquisition Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Gxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions and negative assurance ~~letter, each~~ statements dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ King & ~~Xxxx~~ Spalding LLP, counsel for the Underwriters, such opinion or ~~opinions~~ opinions, and negative assurance ~~letter, each~~ statements dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive ~~Officer~~ Officers and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Mxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~January 1, ~~2020~~ 2021 (~~date~~ commencement of ~~inception~~operations) through ~~July~~ February 24, ~~2020~~2021 and a review of the financial statements of the Company for the period ended June 30, 2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreements, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ King & ~~Xxxx~~ Spalding LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~1185 Avenue of the Americas. 30xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Kxxxx Xxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Apeiron Capital Investment Corp.), Underwriting Agreement (Apeiron Capital Investment Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the ~~time~~ period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~White & Case, ~~Gotshal & Xxxxxx~~ LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect~~, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~. (e) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~November 17, 2020 (date of inception) through ~~July 24~~December 17, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, ~~except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the Representatives. (j) On the ~~Effective Date~~date hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters~~ Letter and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the ~~purchase price for the~~ Private Placement ~~Warrants~~ Portion to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Priveterra Acquisition Corp.), Underwriting Agreement (Priveterra Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters ~~to purchase the Underwritten Securities and the Option Securities, as the case may be,~~ under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company contained~~ Company, the Principal Shareholder and the Selling Shareholders herein set forth as of the ~~Execution Time, the Closing Date~~ date hereof and ~~any Option~~ as of each Closing Date, to the accuracy of the statements of the ~~Company~~ Company's officers, the Selling Shareholders and the Attorneys-in-Fact on behalf of the Selling Shareholders made ~~in any certificates~~ pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of ~~its~~ their respective obligations ~~hereunder~~ hereunder, and to the following additional conditions, unless waived in writing by the Representatives: (a) The ~~Prospectus, and any supplement thereto,~~ Registration Statement shall have been ~~filed~~ declared effective by the Commission not later than 5:30 p.m., Washington, D. C. time, on the date of this Agreement, or such later time as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the ~~manner and within~~ acceleration request submitted on behalf of the ~~time period~~ Representatives pursuant to Rule 461 under the Act; all filings required by ~~Rule~~ Rules 424(b)) and 430A under the Act shall have been timely made; ~~and~~ no stop order suspending the effectiveness of the Registration Statement ~~or any notice objecting to its use~~ shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer and the principal financial~~ Commission or ~~accounting officer of the Company, dated the Closing Date~~any state securities commission nor, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties knowledge of the Company ~~in this Agreement are true and correct on and as of~~ or 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 Principal Shareholders, shall any ~~notice objecting to its use has been issued and no~~ proceedings for that purpose have been ~~instituted or, to the Company’s knowledge,~~ initiated or threatened; ~~and (iii) since the date~~ and any request of the ~~most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive~~ Commission or any state securities commission for inclusion of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included additional information in the Registration Statement, or otherwise, shall have been complied with to the ~~Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements~~ reasonable satisfaction of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentatives. (fb) ~~Subsequent to the Execution Time or, if earlier,~~ Since the dates as of which information is given in the Registration ~~Statement~~ Statement: (~~exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto),~~ i) there shall not have ~~been (i)~~ occurred any change or ~~decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change~~development involving, or ~~any development involving~~ which could be expected to involve, a ~~prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company~~Material Adverse Effect, whether or not arising from transactions in the ordinary course of business; and (ii) the Company shall not have sustained any material loss or interference from any labor dispute, ~~except as set forth in~~ strike, fire, flood, windstorm, accident or ~~contemplated in the Statutory Prospectus and the Prospectus~~ other calamity (~~exclusive of~~ whether or not insured) or from any ~~supplement thereto)~~ court or governmental action, order or decree, 20 the effect of ~~which~~which on the Company, in any such case ~~referred to~~ described in clause (i) or (ii) above, ~~is,~~ is in the ~~sole judgment~~ opinion of the ~~Representatives,~~ Representatives so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Securities as~~ Shares on the terms and in the manner contemplated by in the Registration Statement ~~(exclusive of any amendment thereof), the Statutory Prospectus~~ and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (gc) ~~Prior~~ The Representatives shall not have advised the Company that the Registration Statement or the Prospectus contains an untrue statement of fact that, in the opinion of the Representatives or counsel for the Underwriters, is material, or omits to state a fact that, in the opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received an opinion of Xxxxx & Stant, P.C., counsel for the Company, addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the ~~Company shall have furnished~~ case may be, to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.effect that: (i) The ~~Securities shall~~ Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; the Company is duly registered and qualified to do business as a foreign corporation under the laws of, and is in good standing as such in, each jurisdiction in which such registration or qualification is required, except where the failure to so register or qualify would not have a Material Adverse Effect; (ii) The authorized capital stock of the Company consists of 50,000,000 shares of Common Stock, par value $.01 per share, and 1,000,000 shares of Preferred Stock, par value $.01 per share, and all such stock conforms as to legal matters to the descriptions thereof in the Prospectus and the Registration Statement; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the issuance and sale of the Shares to be ~~duly listed subject to notice of issuance on~~ sold by the ~~Nasdaq Capital Market, satisfactory evidence of which shall~~ Company hereunder have been ~~provided~~ duly authorized and validly issued, are fully paid and nonassessable, and there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company, and to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Company has no subsidiaries, and the Company does not own any equity interest in or control, directly or indirectly, any other corporation, limited liability company, partnership, joint venture, association, trust or other business organization except as described in the Prospectus and the Registration Statement; (v) The certificates for the Shares to be delivered hereunder are in due and proper form and conform to the ~~Representatives. (j) On~~ requirements of applicable law; and when duly countersigned by the ~~Effective Date~~Company's transfer agent, ~~the Company shall have~~ and delivered to the Representatives ~~executed copies~~ or upon the order of the ~~Securities Assignment~~ Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the ~~Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior~~ Shares to ~~the Closing Date,~~ be sold by the Company represented thereby will ~~deliver~~ be duly authorized and validly issued, fully paid and nonassessable, and free of any preemptive, preferential or other rights to subscribe for or purchase shares of Common Stock; (vi) The Registration Statement has become effective under the ~~Representatives executed copies~~ Act, and to such counsel's knowledge, no stop order suspending the effectiveness of the ~~Trust Agreement, the Warrant Agreement, the Insider Letters and the~~ Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have Statement has been issued ~~as of the Closing Date,~~ and no proceedings for that purpose ~~shall~~ have been ~~instituted~~ initiated or ~~shall~~ are threatened under the Act or any Blue Sky Laws; the Registration Statement and the Prospectus and any amendment or supplement thereto (except for the financial statements and other statistical or financial data included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; no facts have come to the attention of such counsel which lead it to believe that either the Registration Statement or the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the First Closing Date or the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made (except for the financial statements and other financial data included therein as to which such counsel need express no opinion); to such counsel's knowledge, (x) there are no legal or governmental proceedings pending or threatened, including, without limitation, any such proceedings that are related to environmental or employment discrimination matters, required to be described in the Registration Statement or the Prospectus which are not so described or which question the validity of this Agreement or any action taken or to be taken pursuant thereto, (y) nor is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described as required; (vii) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed duly authorized by the ~~Chief Executive Officer~~ Company by all necessary corporate action and ~~the principal financial or accounting officer~~ this Agreement has been duly executed and delivered by and on behalf of the Company, ~~dated~~ and is a legal, valid and binding agreement of the ~~Option Closing Date~~Company enforceable against the Company in accordance with its terms, ~~confirming~~ except that rights to indemnity or contribution may be limited by applicable law and except as enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by equitable principles limiting the ~~certificate delivered on~~ right to specific performance or other equitable relief and rights to indemnification and contribution may be limited by state or federal securities laws or the ~~Closing Date pursuant to Section 6(d) hereof remains true~~ policies underlying such laws; no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States or other country or jurisdiction having jurisdiction over the Company is required for the execution and ~~correct as~~ delivery of ~~such Option Closing Date~~this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements by the NASD); (iiviii) ~~opinions~~ The execution, delivery and ~~negative assurance letter~~ performance of ~~Weil~~this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or By-laws of the Company; (B) violate any provisions of, ~~Gotshal & Xxxxxx LLP~~or result in the breach, ~~counsel for~~ modification or termination of, or constitute a default under, any material agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other material instrument to which the Company is a party or by which the Company, ~~dated the Option Closing Date~~or any of its owned or leased property is bound, ~~relating~~ and which is filed as an exhibit to the ~~Option Securities to be purchased on~~ Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States or other country or jurisdiction having jurisdiction over the Company (assuming compliance with all applicable federal and state securities laws); (ix) To such ~~Option Closing Date and otherwise~~ counsel's knowledge, except as described in the Prospectus, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance registration of such ~~Option Securities. If~~ securities under the Act or 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.Blue Sky Laws;

Appears in 2 contracts

Samples: Underwriting Agreement (Metro Information Services Inc), Underwriting Agreement (Metro Information Services Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxxxxx & ~~Xxxxxx~~ Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~January 7, ~~2020 (date~~ 2021(date of inception) through ~~July 24~~March 29, ~~2020~~2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On or prior to the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Stockholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Support Agreement. (k) [Reserved]. (l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $7,000,000 of the purchase price for the Private Placement Warrants to be deposited into the Trust ~~Account~~Account and the remaining $3,000,000 to be paid to the Company. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Conyers Park III Acquisition Corp.), Underwriting Agreement (Conyers Park III Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxxxxx & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ (i) an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~May 9, ~~2020~~ 2019 (~~date of~~ inception) through ~~July 24~~June 30, ~~2020~~2019 and (ii) a review of the financial statements of the Company for the period from May 9, 2019 through September 30, 2019, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the~~ The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxxxxx & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx~~ Xxxxxxxxx X. ~~Xxxxx~~Xxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Software Acquisition Group Inc.), Underwriting Agreement (Software Acquisition Group Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Lxxxxx & ~~Xxxxxx~~ Wxxxxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Weil, Gotshal & ~~Xxxx~~ Mxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Gxxxx Xxxxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~October 22, ~~2020~~ 2018 (date of inception) through ~~July 24~~November 6, ~~2020~~2018, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription ~~Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant~~ Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Weil, Gotshal & ~~Xxxx~~ Mxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~700 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X.~~ Axxx Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (RMG Acquisition Corp.), Underwriting Agreement (RMG Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the ~~time~~ period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement ~~thereto~~thereto as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect~~, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~. (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~February 16, ~~2020~~ 2021 (date of inception) through ~~July 24~~February 16, ~~2020~~2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, ~~except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the ~~Effective Date~~date hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement, the Anchor Investment Agreements, the Forward Purchase Agreements and the Administrative Support Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the ~~purchase price for the~~ Private Placement ~~Warrants~~ Portion to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxx Xxxxx and Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Integral Acquisition Corp 1), Underwriting Agreement (Integral Acquisition Corp 1)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxxxxx & ~~Xxxxxx~~ Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~May 2, ~~2020 (date~~ 2019(date of inception) through ~~July 24~~May 13, ~~2020~~2019, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On or prior to the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Stockholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Support Agreement. (k) [Reserved]. (l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $8,000,000 of the purchase price for the Private Placement Warrants to be deposited into the Trust ~~Account~~Account and the remaining $2,000,000 to be paid to the Company. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx ~~Xxxxxxxx,~~ Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 2 contracts

Samples: Underwriting Agreement (Conyers Park II Acquisition Corp.), Underwriting Agreement (Conyers Park II Acquisition 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,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Note Offering: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or ~~threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for~~ to the knowledge of the Company, threatened by the Commission. b) Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Representatives) shall have furnished to the Representatives ~~its opinions and negative assurance letter~~an opinion or opinions, ~~each~~ dated the Closing ~~Date~~ Date, in each case in form and ~~addressed~~ substance reasonably satisfactory to the Representatives and counsel for the Representatives, relating to certain enforceability, securities law and security interest matters. 11 GEDFMNT 2014-2: Underwriting Agreement c) In-house counsel for each of the Company and GE Capital shall have furnished to the Representatives an opinion, dated the Closing Date, in a form and substance reasonably ~~acceptable~~ satisfactory to the Representatives and counsel for the Representatives. (cd) The Representatives shall have received from ~~Ropes & Xxxx~~ Bxxxxxx MxXxxxxxx LLP, counsel for the ~~Underwriters~~Representatives, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities, the Registration Statement, the Statutory Prospectus~~Offered Notes, the Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as ~~they~~ the Representatives 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 ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signatory of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (CDF Funding, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten Securities~~ Firm Units and the Option ~~Securities~~Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership Parties contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Company~~ Partnership Parties made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Partnership Parties of ~~its~~ their obligations hereunder and to the following additional conditions: (a) The ~~Prospectus,~~ Prospectus and any supplement ~~thereto,~~ thereto have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the 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. (b) The ~~Company~~ Partnership shall have requested and caused ~~Weil, Gotshal~~ Xxxxxx & ~~Xxxxxx~~ Xxxxxxx LLP, Xxxxxxxx, Xxxxxx & Finger, special counsel for the ~~Company~~Partnership, and Xxxxxxx X. Xxxxxxx, general counsel to the Partnership, to have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their respective legal opinions, ~~each~~ dated the Closing Date and any settlement date pursuant to Section 3 hereof, and addressed to the ~~Representatives~~Representative, in a form and substance reasonably ~~acceptable~~ satisfactory to the ~~Representatives~~Representative, substantially in the form set forth on Exhibits B-1, B-2 and B-3. 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 Delaware, the State of New York, the State of Texas or the federal laws of the United States, the DGCL, the Delaware LP Act or the Delaware LLC Act, 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 General Partner and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxxx & ~~Xxxx LLP~~Xxxxxx L.L.P., counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date pursuant to Section 3 hereof, and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the ~~Securities~~Units, the Registration Statement, the ~~Statutory Prospectus~~Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the ~~Company~~ Partnership 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~~ Partnership shall have furnished to the ~~Representatives a certificate~~ Representative certificates of the ~~Company, signed by the Chief Executive Officer and the principal financial or accounting officer~~ officers of the ~~Company~~General Partner, dated the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the effect that the signers of each such certificate have carefully examined the Registration ~~Statement each Preliminary~~ Statement, the Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each electronic roadshow used in connection with the offering of the Units, if any, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ Partnership Parties in this Agreement are true and correct on and as of the Closing Date and any settlement date pursuant to Section 3 hereof, with the same effect as if made on the Closing Date and any settlement date pursuant to Section 3 hereof, and the ~~Company has~~ Partnership Parties 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~~date hereof; (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~~knowledge of the Partnership Parties, threatened; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse ~~Effect,~~ Effect except as ~~set forth in or contemplated~~ described in the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The ~~Company~~ Representative shall have ~~requested~~ received from Ernst & Young LLP customary comfort letters dated the date of this Agreement, the Closing Date and ~~caused KPMG to have furnished~~ any settlement date, and addressed to the ~~Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as~~ Underwriters (with executed copies for each of the ~~Execution Time and as of~~ Underwriters) in the ~~Closing Date, in form and substance~~ forms satisfactory to the ~~Representatives~~Representative, ~~confirming that they are a registered public accounting firm that is independent with respect to~~ which letters shall cover, without limitation, the ~~Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited~~ various financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included disclosures contained in the Registration Statement, the ~~Statutory Prospectus and~~ Disclosure Package, the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the each Permitted Free Writing Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any ~~amendment~~ thereof~~), the Statutory Prospectus~~ ) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), prospects, earnings, business or ~~prospects~~ properties of the ~~Company~~Partnership Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, except as ~~set forth in or contemplated~~ described in the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the ~~Securities~~ Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (g) ~~Prior~~ Subsequent to the ~~Closing Date~~Execution Time, there shall not have been any decrease in the rating of any of the Partnership Entities’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (h) At the Execution Time, the ~~Company~~ Partnership shall have furnished to the ~~Representatives such further information~~Representative a letter substantially in the form of Exhibit A hereto from Tesoro, ~~certificates~~ TRMC, Tesoro Alaska and ~~documents as~~ each officer of and director of the ~~Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect~~ General Partner and addressed to the ~~fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby~~Representative. (i) The ~~Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which~~ Representative shall have ~~been provided to~~ received from the ~~Representatives. (j) On~~ Partnership Parties such additional documents and certificates as the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On Representative or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably ~~request with respect to the issuance of such Option Securities~~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, negative assurance letters~~ 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~~Xxxxxx & Xxxxxx L.L.P., this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 Ropes & Xxxx LLP~~of, counsel for the Underwriters, at Xxxxxx & Xxxxxx L.L.P., 0000 Xxxxxx ~~xx xxx Xxxxxxxx~~Xx., ~~Xxx Xxxx~~Suite 2500, ~~Xxx Xxxx 00000~~Houston, ~~Attention: Xxxx X. Xxxxx, unless otherwise indicated herein~~Texas 77002, on the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof.

Appears in 1 contract

Samples: Underwriting Agreement (Tesoro Logistics Lp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten Securities and the Option Securities, as the case may be,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Offered Notes: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or ~~threatened~~to the knowledge of the Company, threatened by the Commission. (b) ~~The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for~~ Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Representatives) shall have furnished to the Representatives ~~its opinions and negative assurance letter~~an opinion or opinions, ~~each~~ dated the Closing ~~Date~~ Date, in each case in form and ~~addressed~~ substance reasonably satisfactory to the Representatives and counsel for the Representatives, relating to certain enforceability, securities law and security interest matters. (c) In-house counsel for each of the Company and GE Capital shall have furnished to the Representatives an opinion, dated the Closing Date, in a form and substance reasonably ~~acceptable~~ satisfactory to the Representatives and counsel for the Representatives. (cd) The Representatives shall have received from ~~Ropes & Xxxx~~ MxXxx Xxxxxx LLP, counsel for the ~~Underwriters~~Representatives, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities, the Registration Statement, the Statutory Prospectus~~Offered Notes, the Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the Representatives may reasonably require, and the Company shall 9 Underwriting Agreement have furnished to such counsel such documents as ~~they~~ the Representatives 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 ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signatory of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) ~~The Company~~ Counsel for the Indenture Trustee (who shall ~~have requested and caused KPMG~~ be satisfactory to the Representatives) shall have furnished to the ~~Representatives, at the Execution Time and at the Closing Date, letters~~Representatives an opinion, dated ~~respectively as of the Execution Time and as of~~ the Closing Date, in form and substance reasonably satisfactory to the Representatives. (g) Counsel for the Owner Trustee (who shall be satisfactory to the Representatives) shall have furnished to the Representatives an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. (h) Counsel for the Company (who shall be satisfactory to the Representatives) shall have furnished to the Representatives opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, ~~confirming that they are a registered public accounting firm that is independent with respect~~ relating to ~~the Company within the meaning of the Act~~ certain bankruptcy matters and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:Federal income tax matters. (i) ~~in their opinion~~ The Representatives shall have received a letter, dated the ~~audited financial statements~~ Closing Date or such other date as may be agreed upon between the Representatives and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, ~~excluding any questions of legal interpretation. References~~ from certified public accountants (who shall be satisfactory to the ~~Prospectus~~ Representatives), substantially in ~~this paragraph (e) include any supplement thereto at~~ the ~~date of~~ form previously approved by the ~~letter~~Representatives. (fj) ~~Subsequent to~~ The Offered Notes shall have received the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease ratings specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus. (gk) 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. (hl) ~~FINRA shall not have raised any objection with respect~~ Subsequent to the ~~fairness or reasonableness~~ date of the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market~~Prospectus, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 there shall not have been ~~fulfilled when and as provided~~ any material adverse change in ~~this Agreement,~~ the business or ~~if any~~ properties of the ~~opinions, negative assurance letters and certificates mentioned above~~ Company or ~~elsewhere~~ GE Capital which 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~~ reasonable judgment of the ~~Underwriters hereunder may be canceled at~~Representatives, after consultation with the Company, materially impairs the investment quality of the Offered Notes so as to make it impractical or ~~at any time prior to,~~ inadvisable to proceed with the ~~Closing Date~~ public offering or the delivery of such Offered Notes as contemplated 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 Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing DateProspectus.

Appears in 1 contract

Samples: Underwriting Agreement (CDF Funding, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten Securities~~ Firm Units and the Option ~~Securities~~Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership Parties contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Company~~ Partnership Parties made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Partnership Parties of ~~its~~ their obligations hereunder and to the following additional conditions: (a) The ~~Prospectus,~~ Prospectus and any supplement ~~thereto,~~ thereto have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the 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. (b) The ~~Company~~ Partnership shall have requested and caused ~~Weil, Gotshal~~ Fulbright & ~~Xxxxxx~~ Xxxxxxxx LLP, Xxxxxxxx, Xxxxxx & Finger, special counsel for the ~~Company~~Partnership, and Xxxxxxx X. Xxxxxxx, general counsel to the Partnership, to have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their respective legal opinions, ~~each~~ dated the Closing Date and any settlement date pursuant to Section 3 hereof, and addressed to the ~~Representatives~~Representative, in a form and substance reasonably ~~acceptable~~ satisfactory to the ~~Representatives~~Representative, substantially in the form set forth on Exhibits B-1, B-2 and B-3. In rendering such opinion, such counsel may rely (i) as to matters involving the application of laws of any jurisdiction other than the State of Delaware, the State of New York, the State of Texas or the federal laws of the United States, the DGCL, the Delaware LP Act or the Delaware LLC Act, 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 (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the General Partner and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) The ~~Representatives~~ Partnership shall have requested and caused Fulbright & Xxxxxxxx LLP to have furnished to the Representative their negative assurance letters, dated the Closing Date and any settlement date pursuant to Section 3 hereof, and addressed to the Representative, in form and substance reasonably satisfactory to the Representative. (d) The Representative shall have received from ~~Ropes~~ Xxxxxx & ~~Xxxx LLP~~Xxxxxx L.L.P., counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date pursuant to Section 3 hereof, and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the ~~Securities~~Units, the Registration Statement, the ~~Statutory Prospectus~~Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the ~~Company~~ Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (de) The ~~Company~~ Partnership shall have furnished to the ~~Representatives a certificate~~ Representative certificates of the ~~Company, signed by the Chief Executive Officer and the principal financial or accounting officer~~ officers of the ~~Company~~General Partner, dated the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the effect that the signers of each such certificate have carefully examined the Registration ~~Statement each Preliminary~~ Statement, the Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each electronic roadshow used in connection with the offering of the Units, if any, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ Partnership Parties in this Agreement are true and correct on and as of the Closing Date and any settlement date pursuant to Section 3 hereof, with the same effect as if made on the Closing Date and any settlement date pursuant to Section 3 hereof, and the ~~Company has~~ Partnership Parties 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~~date hereof; (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~~knowledge of the Partnership Parties, threatened; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse ~~Effect,~~ Effect except as ~~set forth in or contemplated~~ described in the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any supplement thereto). (ef) The ~~Company~~ Representative shall have ~~requested~~ received from Ernst & Young LLP customary comfort letters dated the date of this Agreement, the Closing Date and ~~caused KPMG to have furnished~~ any settlement date, and addressed to the ~~Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as~~ Representative (with executed copies for each of the ~~Execution Time and as of~~ Underwriters) in the ~~Closing Date, in form and substance~~ forms satisfactory to the ~~Representatives~~Representative, ~~confirming that they are a registered public accounting firm that is independent with respect to~~ which letters shall cover, without limitation, the ~~Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted~~ various financial disclosures included or incorporated by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included reference in the Registration Statement, the ~~Statutory Prospectus and~~ Disclosure Package, the Prospectus and ~~reported on by them comply as~~ each Permitted Free Writing Prospectus. (g) The Representative shall have received from PricewaterhouseCoopers LLP customary comfort letters dated the date of this Agreement, the Closing Date and any settlement date, and addressed to ~~form in all material respects~~ the Representative (with ~~the applicable accounting requirements~~ executed copies for each of the ~~Act~~ Underwriters) in the forms satisfactory to the Representative, which letters shall cover, without limitation, (1) the statements of revenues 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 direct operating expenses of the ~~Company~~Northwest Products System related to certain pipeline and terminal operations of Chevron Pipe Line and (2) ~~set forth~~ the statements of revenues and direct operating expenses of QEPFS related to certain pipeline and terminal operations of QEPFS, both as included or incorporated by reference in the Registration Statement, the ~~Statutory~~ Disclosure Package, the Prospectus and ~~the~~ each Permitted Free Writing Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in ~~this paragraph~~ paragraphs (ef) and (g) above include any supplement thereto at the date of the letter. (fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any ~~amendment~~ thereof~~), the Statutory Prospectus~~ ) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in ~~paragraph~~ paragraphs (ef) and (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), prospects, earnings, business or ~~prospects~~ properties of the ~~Company~~Partnership Entities 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the ~~Securities~~ Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (gi) ~~Prior~~ Subsequent to the ~~Closing Date~~Execution Time, there shall not have been any decrease in the rating of any of the Partnership Entities’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes 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. (j) At the Execution Time, the ~~Company~~ Partnership shall have furnished to the ~~Representatives such further information~~Representative a letter substantially in the form of Exhibit A hereto from Tesoro, ~~certificates~~ TRMC, Tesoro Alaska and ~~documents as~~ each officer of and director of the ~~Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect~~ General Partner and addressed to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementRepresentative. (k) ~~At least one Business Day prior~~ The Partnership shall have furnished to the ~~Closing Date~~Representative certificates relating to the West Coast Logistics Assets Acquisition (as described in the Registration Statement, the ~~Sponsor shall have caused~~ Disclosure Package, and the ~~purchase price for~~ Prospectus), dated as of the ~~Private Placement Warrants~~ date of this Agreement, the Closing Date and any settlement date, of the Vice President and Controller of the General Partner, in the forms satisfactory to ~~be deposited into~~ the ~~Trust Account~~Representative. (l) ~~No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof~~ The Representative shall have ~~been issued~~ received from the Partnership Parties such additional documents and certificates as of the ~~Closing Date, and no proceedings for that purpose shall have been instituted~~ Representative or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably ~~request with respect to the issuance of such Option Securities~~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, negative assurance letters~~ 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~~Xxxxxx & Xxxxxx L.L.P., this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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~~ offices of ~~Ropes & Xxxx LLP,~~ counsel for the Underwriters, at Xxxxxx & Xxxxxx L.L.P., 0000 Xxxxxx ~~xx xxx Xxxxxxxx~~Xx., ~~Xxx Xxxx~~Suite 2500, ~~Xxx Xxxx 00000~~Houston, ~~Attention: Xxxx X. Xxxxx, unless otherwise indicated herein~~Texas 77002, on the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof.

Appears in 1 contract

Samples: Underwriting Agreement (Tesoro Logistics Lp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes & Xxxx~~ Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~August 15, ~~2020~~ 2016 (date of inception) through ~~July 24~~September 30, ~~2020~~2016, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes & Xxxx~~ Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Gores Holdings II, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from ~~Ropes & Xxxx~~ Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~November 4, ~~2020~~ 2015 (date of inception) through ~~July 24~~December 31, ~~2020~~2015, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Support Agreement. (k) On the Effective Date, the Company shall have declared the Dividend. (l) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes & Xxxx~~ Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Silver Run Acquisition Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Xxxxxxxx Xxxxxx, ~~Gotshal & Xxxxxx LLP~~counsel for the Company, Xxxxxxx Xxxxxx, Cayman Islands counsel for the Company and Han Kun Law Offices, People’s Republic of China (“PRC”) counsel for the Company, to have furnished to the Representatives ~~its opinions and negative assurance letter~~their opinions, ~~each~~ dated the ~~Closing~~ Effective Date and addressed to the ~~Representatives~~Representatives in the forms attached as Exhibit C-1, ~~in a form reasonably acceptable~~ Exhibit C-2 and Exhibit C-3, respectively. In rendering such opinions, Xxxxxxxx Xxxxxx may rely as to matters involving the application of laws of any jurisdiction other than the Delaware General Corporation Law, the State of New York, and the Federal laws of the United States, to the ~~Representatives~~extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Underwriters. In rendering such opinion, each such counsel may also 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 Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) The Representatives shall have received from ~~Ropes & Xxxx~~ Blank Rome LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities and the Representatives’ Securities, the Registration Statement, the Statutory Prospectus, the 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 reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Blank Rome LLP may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials and the opinion of Xxxxxxx Xxxxxx as to matters of Cayman Islands law. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxxxxx Kass to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered ~~public accounting firm that is~~ independent ~~with respect to the Company~~ accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the ~~audited~~ unaudited interim financial ~~statements~~ information of the Company for the [_________ ]-month period ~~from June 29~~ended [ __________] and as at [___________ ], ~~2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable,~~ in accordance with Statement on Auditing Standards No. 100 and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form ~~in all material respects~~ with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the [__________] -month period ended [ ________] and as at [________ ] [,as indicated in their report dated __________] ; 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, if any, of the stockholders, directors and audit, governance and nominating committees of the Company; 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 [_________], nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form F-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus; and (ii2) ~~they have performed certain other~~ with respect to the period subsequent to [_________], there were any changes, at a specified ~~procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited~~ date not more than five days prior to ~~accounting, financial or statistical information derived from~~ the ~~general accounting records~~ date of the ~~Company) set forth~~ letter, in the long-term debt of the Company or capital stock of the Company or decreases in the stockholders’ equity of the Company net loss or loss before income taxes or in total or per share amounts of net loss to the Company as compared with the amounts shown on the [_________] [insert same date as above] balance sheet included in the Registration Statement, the Statutory Prospectus and the Prospectus, ~~including~~ or for the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at period from [_________] [insert date one day after the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) inserted above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior ] to such ~~Option Closing Date~~specified date there were any decreases, as compared with [_________] [insert the appropriate comparative period; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.e.

Appears in 1 contract

Samples: Underwriting Agreement (China Ascendance Acquisition 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,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Offered Notes: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or ~~threatened~~to the knowledge of the Company, threatened by the Commission. (b) ~~The Company~~ Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Representative) shall have ~~requested~~ furnished to the Representative an opinion or opinions, dated the Closing Date, in each case in form and ~~caused Weil~~substance reasonably satisfactory to the Representative and counsel for the Representative, ~~Gotshal &~~ relating to certain enforceability, securities law and security interest matters. (c) In-house counsel for each of the Company and GE Capital shall have furnished to the Representative an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representative and counsel for the Representative. (d) The Representative shall have received from XxXxx Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the UnderwritersRepresentative, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities, the Registration Statement, the Statutory Prospectus~~Offered Notes, the Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the ~~Representatives~~ Representative may reasonably require, and the Company shall have furnished to such counsel such documents as ~~they~~ the Representative may reasonably request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signatory of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.all

Appears in 1 contract

Samples: Underwriting Agreement (CDF Funding, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten~~ Debt Securities ~~and the Option Securities, as the case may be,~~ shall be ~~subject~~ subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company contained herein as of the ~~Execution Time,~~ date hereof and the ~~Closing Date and any Option~~ Closing Date, to the accuracy of the statements of ~~the~~ Company officers made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The ~~Prospectus, and any supplement thereto,~~ Prospectus Supplement relating to the Debt Securities shall have been filed in with the ~~manner and~~ Commission pursuant to Rule 424(b) and/or Rule 434 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 4(a) hereof; ~~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~~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~~ Representatives shall ~~have requested and caused Weil~~be furnished with opinions, ~~Gotshal~~ dated the Closing Date, of Xxxx X. Xxxxxxx, General Counsel of the Company; Hinkle, Hensley, Xxxxxx & Xxxxxx ~~LLP~~L.L.P.; Rainey, Ross, Rice & Xxxxx; and Xxxxxxxx & Xxxxxxx, counsel for the Company, ~~to have furnished to~~ substantially in the ~~Representatives its opinions~~ forms included as Exhibits A, B, C and ~~negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives~~D respectively. (c) The Representatives shall have received from ~~Ropes~~ Xxxxx, Day, Xxxxxx & ~~Xxxx LLP~~Xxxxx, Chicago, Illinois, counsel for the Underwriters, such opinion or opinions ~~and negative assurance letter, each~~ dated the Closing Date ~~and addressed to the Representatives,~~ with respect to the ~~issuance and sale~~ incorporation of the Company, this Agreement, the validity of the Indenture, the Debt Securities, the Registration Statement, the ~~Statutory Prospectus, the~~ 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 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 Chief Executive Officer and the principal financial~~ President or ~~accounting officer~~ any Vice President of the Company, dated the Closing Date, as to the matters set forth in clause (a) and (h) of this Section 6 and to the further effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary Prospectus~~Statement, the Prospectus ~~and any amendment or supplement thereto,~~ and this Agreement and that: (i) the representations and warranties of the Company 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;; and (ii) there has been no ~~stop order suspending~~ material adverse change in the ~~effectiveness~~ condition of the Company, financial or otherwise, or in the earnings, affairs or business prospects of the Company, whether or not arising in the ordinary course of business, from that set forth or contemplated by the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Supplement. (e) The ~~Company~~ Representatives shall have ~~requested~~ received letters from Xxxxxx Xxxxxxxx LLP, independent public accountant for the Company (dated the date of this Agreement and ~~caused KPMG to have furnished to the Representatives, at the Execution Time and at the~~ Closing Date, ~~letters~~respectively, ~~dated respectively as of the Execution Time~~ and ~~as of the Closing Date,~~ in form and substance satisfactory to the Representatives~~, confirming~~ ) advising that (i) they are ~~a registered~~ an independent public ~~accounting firm that is independent with respect to the Company within the meaning of~~ accountant as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the financial statements and supplemental schedules incorporated by reference in the Registration Statement and covered by their opinion filed with the Commission under Section 13 of the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the ~~related~~ published rules and regulations ~~adopted by~~ of the ~~Commission; and~~ Commission thereunder, (iiiii) they have performed ~~certain~~ limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the Shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (a) any material modifications should be made to any unaudited financial statements of the Company included or incorporated by reference in the Registration Statement or Prospectus for them to be in conformity with generally accepted accounting principles or any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement or Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; (b) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus and except as set forth in or contemplated by the Registration Statement or Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt or decreases in stockholders' equity or net current assets of the Company as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company, 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 (iv) they have carried out specified procedures ~~as a result~~ performed for the purpose of ~~which they determined that~~ comparing certain specified financial information ~~of an accounting, financial or statistical nature~~ and percentages (which is limited to ~~accounting,~~ financial ~~or statistical~~ information derived from ~~the~~ general accounting records of the Company) ~~set forth~~ included or incorporated by reference in the Registration ~~Statement, the Statutory~~ Statement and Prospectus ~~and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization”~~ with indicated amounts in the ~~Statutory Prospectus and the Prospectus, agrees with the~~ financial statements or accounting records of the ~~Company,~~ Company and (excluding any questions of legal interpretation~~. References~~ ) have found such information and percentages to be in agreement with the ~~Prospectus in this paragraph (e) include any supplement thereto at the date~~ relevant accounting and financial information of the ~~letter~~Company referred to in such letter in the description of the procedures performed by them. (f) Subsequent to the ~~Execution Time or, if earlier, the~~ respective dates as of which information is given in the Registration Statement ~~(exclusive of any amendment thereof), the Statutory Prospectus~~ and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there shall not have been ~~(i)~~ any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 which makes it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or the delivery of the Debt Securities on the terms and in the manner contemplated by the Prospectus. (g) Subsequent to the date hereof, no downgrading shall have occurred, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act. (i) The Company shall not have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement, and (ii) since the date of this Agreement, the Company shall not have incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company, and there shall not have been any change in the capital stock or long-term debt of the Company or any change, or any development involving a prospective change, in or affecting the ~~earnings, business~~general affairs, management, ~~properties~~financial position, ~~assets, rights, operations, condition (financial~~ stockholders' equity or ~~otherwise) or prospects~~ results of operations of the ~~Company, whether or not arising from transactions in the ordinary course of business, except~~ Company otherwise than as set forth in or contemplated in the ~~Statutory~~ Prospectus ~~and the Prospectus (exclusive of any supplement thereto)~~ Supplement, the effect of which, in any such case ~~referred to~~ described in clause (i) or (ii) ~~above, is,~~ is in the ~~sole~~ judgment of the ~~Representatives,~~ Representatives so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to proceed with the public offering or the delivery of the Debt Securities as on the terms and in the manner contemplated by the ~~Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~Prospectus. (gi) No Representative shall have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading. (j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as ~~the Representatives~~ they may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as ~~provided in~~ required by this Agreement, or if any of the ~~opinions, negative assurance letters~~ 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~~their counsel, this Agreement and all obligations of the Underwriters hereunder may be ~~canceled~~ 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~~ writing, or by telephone or ~~facsimile~~ telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Southwestern Public Service Co)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten Securities and the Option Securities, as the case may be,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Note Offering: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or ~~threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for~~ to the knowledge of the Company, threatened by the Commission. b) Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Representatives) shall have furnished to the Representatives ~~its opinions and negative assurance letter~~an opinion or opinions, ~~each~~ dated the Closing ~~Date~~ Date, in each case in form and ~~addressed~~ substance reasonably satisfactory to the Representatives and counsel for the Representatives, relating to certain enforceability, securities law and security interest matters. 11 GEDFMNT 2014-1: Underwriting Agreement c) In-house counsel for each of the Company and GE Capital shall have furnished to the Representatives an opinion, dated the Closing Date, in a form and substance reasonably ~~acceptable~~ satisfactory to the Representatives and counsel for the Representatives. (cd) The Representatives shall have received from ~~Ropes & Xxxx~~ Bxxxxxx MxXxxxxxx LLP, counsel for the ~~Underwriters~~Representatives, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities, the Registration Statement, the Statutory Prospectus~~Offered Notes, the Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as ~~they~~ the Representatives 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 ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signatory of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (CDF Funding, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and ~~the~~ any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager 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); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) ~~The Company~~ At the Closing Date, the Representatives shall have ~~requested~~ received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and ~~caused Weil, Gotshal~~ Xxxxx & ~~Xxxxxx~~ Xxxxxxx LLP, counsel for the ~~Company~~Company and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, 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 ~~have furnished~~ 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 ~~Representatives its opinions~~ extent they deem proper, on certificates of responsible officers of the Company and ~~negative assurance letter, each dated~~ public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing ~~Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives~~Date. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ supplements or ~~supplement~~ amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date. (f) The Company shall have requested and caused ~~KPMG~~ 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, ~~confirming that they are a registered public accounting firm that is independent~~ containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the ~~Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited~~ financial statements and certain financial information of the Company ~~for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time~~ contained or ~~Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included~~ incorporated by reference in the Registration Statement, the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Final Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof~~), the Statutory Prospectus~~ ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), earnings, business or ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gh) 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. (hi) ~~FINRA shall not have raised any objection with respect~~ Prior to the ~~fairness or reasonableness of~~ Closing Date, the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The~~ Securities shall ~~be duly~~ have been listed ~~subject to notice of issuance~~ and admitted and authorized for trading on the ~~Nasdaq Capital Market~~New York Stock Exchange, and satisfactory evidence of ~~which~~ such actions shall have been provided to the Representatives. (j) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives ~~executed copies~~ a letter substantially in the form of Exhibit C hereto from (i) each officer and director of the ~~Securities Assignment Agreement~~Company (other than Xxxxx Xxxxxxxxxx), (ii) each officer of the ~~Founder’s Purchase Agreement~~Manager, ~~the Warrant Subscription Agreement~~ and ~~the Administrative Services Agreement. On or prior~~ (iii) SPT Investment, LLC, in each case addressed to the ~~Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement~~Representatives. (k) At ~~least one Business Day prior to~~ the ~~Closing Date~~Execution Time, the ~~Sponsor~~ Company shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives on a letter substantially in the ~~applicable Option Closing Date~~ form of ~~the following:~~ Exhibit D hereto from (i) ~~a certificate signed by~~ the ~~Chief Executive Officer~~ Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing DateXxxxx Xxxxxxxxxx, in ~~form and substance satisfactory~~ each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~Four Times Square, ~~Xxx Xxxx~~New York, ~~Xxx Xxxx 00000~~New York, ~~Attention: Xxxx X. Xxxxx, unless otherwise indicated herein~~10036-6522, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Starwood Property Trust, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxxxxx & ~~Xxxxxx~~ Xxxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from~~ June 2922, 2020 (date of inception) through ~~July 24~~[●], 2020, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company ~~will deliver~~ shall have delivered to the ~~Representatives~~ Representative executed copies of the Trust Agreement, the Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement CAPSTM Purchase Agreement, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Services Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $3,000,000 of the purchase price for the Private Placement ~~Warrants~~ CAPSTM to be deposited into the Trust ~~Account~~Account and the remaining $2,000,000 to be paid to the Company. (l) No order preventing or suspending the sale of the ~~Units~~ CAPSTM in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxxxx Xxxxxx and Xxxxxx Xxxxxxxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Executive Network Partnering Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten~~ Securities ~~and the Option Securities, as the case may be,~~ shall be subject to the accuracy of the representations and warranties on the part of the ~~Company~~ Company, the Adviser and the Administrator contained herein as of the Execution ~~Time,~~ Time and the ~~Closing Date and any Option~~ Closing Date, to the accuracy of the statements of the ~~Company~~ Company, the Adviser and the Administrator made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Company, the Adviser or the Administrator of ~~its~~ their obligations hereunder and to the following additional conditions: (a) The ~~Prospectus,~~ Final Prospectus and any ~~supplement thereto,~~ supplements thereto shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or order pursuant to Section 54(c) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or ~~threatened~~threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or Final Prospectus or otherwise) shall have been complied with in all material respects. The Notification of Election is effective and no order suspending the effectiveness of the Notification of Election shall have been issued or proceedings therefor initiated or threatened by the Commission. (b) The Company shall have requested and caused ~~Weil~~special counsel for the Company to have furnished to the Representatives its opinion, ~~Gotshal & Xxxxxx LLP~~dated the Closing Date, and addressed to the Representatives, to the effect set forth in Exhibits X-0, X-0 and A-3. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company, the Adviser and the Administrator and public officials. References to the Final Prospectus in Exhibits X-0, X-0 and A-3 shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations. (c) The Company shall have requested and caused Maryland counsel for the Company, to have furnished to the Representatives its ~~opinions and negative assurance letter~~opinion, ~~each~~ dated the Closing ~~Date~~ Date, and addressed to the Representatives, ~~in a form reasonably acceptable~~ to the ~~Representatives~~effect set forth in Exhibit B. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and 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 Exhibit B shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations. (cd) You shall have received on the Closing Date an opinion of counsel for the Adviser and the Administrator, dated the Closing Date, and addressed to the Representatives to the effect set forth in Exhibit C. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and 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 Exhibit C shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations. (e) The Representatives shall have received from ~~Ropes & Xxxx LLP,~~ counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing ~~Date~~ Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the ~~Statutory Prospectus,~~ Preliminary Prospectus and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Adviser shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (df) ~~The Company~~ Each of the Company, the Adviser and the Administrator shall have furnished to the Representatives a ~~certificate of the Company~~certificate, signed by the ~~Chief~~ Chairman of the Board or the President or Executive ~~Officer~~ Vice President and the principal financial or accounting officer of each of the Company, the Adviser and the Administrator, as the case may be, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus, ~~the Prospectus and~~ any ~~amendment~~ amendments or ~~supplement thereto,~~ supplements thereto and this Agreement and that: (i) ~~the~~ The representations and warranties of the ~~Company~~ Company, the Adviser or the Administrator, as the case may be, 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~~ Company, the Adviser or the Administrator, as the case may be, 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; (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, the Adviser’s or the Administrator’s knowledge, as the case may be, threatened; and (iii) ~~since~~ Since the date of the most recent financial statements included in the ~~Statutory Prospectus and the~~ Final Prospectus (exclusive of any supplement thereto) (with respect to the certificate of the Company) and since the date of the Final Prospectus (exclusive of any supplements thereto) (with respect to the certificates of the Adviser and the Administrator), there has been no ~~Material Adverse Effect~~material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Adviser or the Administrator, as the case may be, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory~~ Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto). (eg) The Company shall have requested and caused ~~KPMG~~ PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives. (h) The Company shall have furnished to the Representatives a certificate, ~~confirming that they are a registered public accounting firm that is independent~~ dated the date hereof and the Closing Date, and addressed to the Underwriters, of its chief financial officer with respect to ~~the Company within the meaning of the Act~~ certain financial data contained in each Preliminary Prospectus and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29Final Prospectus, ~~2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior~~ providing “management comfort” with respect to such ~~Execution Time or Closing Date~~information, ~~as applicable,~~ in form and ~~stating in effect that:~~substance reasonably satisfactory to the Representatives. (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), ~~the Statutory~~ each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), prospects, earnings, business or ~~prospects~~ properties of the ~~Company~~Company and the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory~~ Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the ~~Statutory~~ Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto). (gj) Apollo Global Management, LLC shall have delivered to you a certificate signed by one of its senior officers in the form attached as Exhibit D. (k) On or prior to the Closing Date, the Company and the Trustee shall have executed and delivered the Base Indenture and the Fifth Supplemental Indenture. (l) Prior to the Closing Date, the ~~Company~~ Company, the Adviser and the Administrator shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hm) ~~FINRA~~ Subsequent to the Execution Time, there shall not have ~~raised~~ been any ~~objection with respect to~~ decrease in the ~~fairness or reasonableness~~ rating of any of the ~~underwriting or other arrangements~~ Company’s debt securities below investment grade by any “nationally recognized statistical rating organization” (as such term is defined under Section 3(a)(62) of the ~~transactions contemplated hereby~~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. (in) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the ~~opinions, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. . (o) The documents required to be delivered by this Section 6 7 shall be delivered at the office of ~~Ropes & Xxxx LLP,~~ counsel for the ~~Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein,~~ Underwriters on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Apollo Investment Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Vxxxxx & ~~Xxxxxx LLP~~Exxxxx L.L.P., counsel for the Company, to have furnished to the ~~Representatives~~ Representative its ~~opinions~~ opinion and negative assurance ~~letter, each~~ letter (which may be made part of such opinion) dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Cravath, Swaine & ~~Xxxx~~ Mxxxx LLP, counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurance ~~letter, each~~ letter dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each “road show” as defined in Rule 433(h) used in connection with the Offering and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of ~~the~~ such Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), 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~~ such Closing ~~Date~~Date or settlement date (as applicable); (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been ~~issued~~ issued, and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material adverse change or effect, nor any development involving a prospective material adverse change or effect, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have furnished to the Representative a certificate signed by the Chief Executive Officer and another executive officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ the Auditor to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), comfort letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the ~~audited~~ financial statements of the Company ~~for~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020,~~ Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their ~~opinion~~ opinion, the ~~audited~~ financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this ~~paragraph (e~~Section 6(f) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been ~~(i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii)~~ any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ij) The Securities shall be duly ~~listed~~ listed, subject to notice of ~~issuance~~ issuance, on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreements, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Registration Rights Agreement, the Insider ~~Letters~~ Letter and the ~~Registration Rights~~ Administrative Support Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representative has requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters~~ 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 ~~canceled~~ cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 Ropes~~ in electronic format to Cravath, Swaine & ~~Xxxx~~ Mxxxx LLP, counsel for the Underwriters, ~~at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,~~ Attention: ~~Xxxx X. Xxxxx~~Axxxxx Xxxxx (email: axxxxx@xxxxxxx.xxx) and C. Dxxxxx Xxxxxx (email: dxxxxxx@xxxxxxx.xxx), unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Samples: Underwriting Agreement (Nabors Energy Transition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal & Xxxxxx LLP~~DLA Piper LLP (US), counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The Representatives shall have received from ~~Ropes &~~ Xxxx Xxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~February 5, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~March 11, ~~2020~~2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the ~~Securities Assignment~~ Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the ~~Warrant Subscription~~ Private Placement Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes &~~ Xxxx Xxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxx Xxxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Parabellum Acquisition 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,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Offered Notes: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or ~~threatened~~to the knowledge of the Company, threatened by the Commission. (b) ~~The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for~~ Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Representatives) shall have furnished to the Representatives ~~its opinions and negative assurance letter~~an opinion or opinions, ~~each~~ dated the Closing ~~Date~~ Date, in each case in form and ~~addressed~~ substance reasonably satisfactory to the Representatives and counsel for the Representatives, relating to certain enforceability, securities law and security interest matters. (c) In-house counsel for each of the Company and GE Capital shall have furnished to the Representatives an opinion, dated the Closing Date, in a form and substance reasonably ~~acceptable~~ satisfactory to the Representatives and counsel for the Representatives. (cd) The Representatives shall have received from ~~Ropes & Xxxx~~ MxXxx Xxxxxx LLP, counsel for the ~~Underwriters~~Representatives, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities, the Registration Statement, the Statutory Prospectus~~Offered Notes, the Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as ~~they~~ the Representatives 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 ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signatory of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) ~~The Company~~ Counsel for the Indenture Trustee (who shall ~~have requested and caused KPMG~~ be satisfactory to the Representatives) shall have furnished to the ~~Representatives, at the Execution Time and at the Closing Date, letters~~Representatives an opinion, dated ~~respectively as of the Execution Time and as of~~ the Closing Date, in form and substance reasonably satisfactory to the Representatives. (g) Counsel for the Owner Trustee (who shall be satisfactory to the Representatives) shall have furnished to the Representatives an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. (h) Counsel for the Company (who shall be satisfactory to the Representatives) shall have furnished to the Representatives opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, ~~confirming that they are a registered public accounting firm that is independent with respect~~ relating to ~~the Company within the meaning of the Act~~ certain bankruptcy matters and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:Federal income tax matters. (i) ~~in their opinion~~ The Representatives shall have received a letter, dated the ~~audited financial statements~~ Closing Date or such other date as may be agreed upon between the Representatives and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, ~~excluding any questions of legal interpretation. References~~ from certified public accountants (who shall be satisfactory to the ~~Prospectus~~ Representatives), substantially in ~~this paragraph (e) include any supplement thereto at~~ the ~~date of~~ form previously approved by the ~~letter~~Representatives. (fj) ~~Subsequent to~~ The Offered Notes shall have received the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease ratings specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus. (gk) 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. (hl) ~~FINRA shall not have raised any objection with respect~~ Subsequent to the ~~fairness or reasonableness~~ date of the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market~~Prospectus, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 there shall not have been ~~fulfilled when and as provided~~ any material adverse change in ~~this Agreement,~~ the business or ~~if any~~ properties of the ~~opinions, negative assurance letters and certificates mentioned above~~ Company or ~~elsewhere~~ GE Capital which 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~~ reasonable judgment of the ~~Underwriters hereunder may be canceled at~~Representatives, after consultation with the Company, materially impairs the investment quality of the Offered Notes so as to make it impractical or ~~at any time prior to,~~ inadvisable to proceed with the ~~Closing Date~~ public offering or the delivery of such Offered Notes as contemplated 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 Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing DateProspectus.

Appears in 1 contract

Samples: Underwriting Agreement (GE Dealer Floorplan Master Note Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ropes & ~~Xxxxxx~~ Xxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), 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~~Date or settlement date (as applicable); (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been ~~issued~~ issued, and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have furnished to the Representative a certificate signed by the Chief Operating Officer of the Company, dated the Closing Date, certifying that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ WithumSmith to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the ~~audited~~ financial statements of the Company ~~for~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020,~~ Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their opinion the ~~audited~~ financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been ~~(i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii)~~ any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ij) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the CAVU Purchase Agreement, the Insider ~~Letters~~ Letter and the Registration and Stockholder Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished~~ Representative has requested in connection with the verification of the foregoing certificate. (o) On the Closing Date, the Company shall deliver evidence satisfactory to the ~~Underwriters pursuant to Section 6(e) hereof; provided~~ Representative that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesConcurrent CAVU Private Placement has been consummated. 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, negative assurance letters~~ 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 ~~canceled~~ cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 Ropes~~ in electronic format to Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, ~~at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,~~ Attention: ~~Xxxx X. Xxxxx~~Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Samples: Underwriting Agreement (HumanCo Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxxxxx & ~~Xxxxxx~~ Xxxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from~~ June 2922, 2020 (date of inception) through ~~July 24~~June 22, 2020, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company ~~will deliver~~ shall have delivered to the ~~Representatives~~ Representative executed copies of the Trust Agreement, the Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement CAPSTM Purchase Agreement, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Services Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $3,600,000 of the purchase price for the Private Placement ~~Warrants~~ CAPSTM to be deposited into the Trust ~~Account~~Account and the remaining $2,000,000 to be paid to the Company. (l) No order preventing or suspending the sale of the ~~Units~~ CAPSTM in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxxxx Xxxxxx and Xxxxxx Xxxxxxxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Executive Network Partnering Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Ellenoff Xxxxxxxx & ~~Xxxxxx~~ Schole LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxxxxx & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~General Disclosure Package, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed ~~a review~~ an audit of the ~~audited~~ financial statements of the Company for the period from ~~June 29~~August 10, 2020 (~~date of~~ inception) through ~~July 24~~August 21, 2020, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~change in, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 ~~Statutory Prospectus~~ General Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the~~ The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Private Placement Agreements, the Insider ~~Letters~~ Letter, the Registration and Shareholder Rights Agreement and the ~~Registration Rights~~ Administrative Support Agreement. (k) At least one (1) Business Day prior to the ~~Closing~~ Effective Date, each of the Sponsor and X. Xxxxx Principal Investments LLC shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(jj) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxxxxx & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx~~ Xxxxxxxxx X. ~~Xxxxx~~Xxxxxx, Esq. and Xxxxx X. Xxxxxxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Spartacus Acquisition 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,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Note Offering: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or ~~threatened~~to the knowledge of the Company, threatened by the Commission. (b) ~~The Company~~ Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Representative[s]) shall have ~~requested~~ furnished to the Representative[s] an opinion or opinions, dated the Closing Date, in each case in form and ~~caused Weil~~substance reasonably satisfactory to the Representative[s] and counsel for the Representative[s], ~~Gotshal & Xxxxxx LLP~~relating to certain enforceability, securities law and security interest matters. c) In-house counsel for each of the Company and GE Capital shall have furnished to the Representative[s] an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representative[s] and counsel for the Representative[s]. d) The Representative[s] shall have received from [_____], counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the UnderwritersRepresentative[s], such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities, the Registration Statement, the Statutory Prospectus~~Offered Notes, the Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the ~~Representatives~~ Representative[s] may reasonably require, and the Company shall have furnished to such counsel such documents as ~~they~~ the Representative[s] may reasonably request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to the ~~Representatives~~ Representative[s] a certificate of the Company, signed by the ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signatory of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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;. f) Counsel for the Indenture Trustee (~~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,~~ who shall be satisfactory to the ~~Company’s knowledge, threatened; and (iii~~Representative[s]) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall ~~have requested and caused KPMG to~~ have furnished to the ~~Representatives~~Representative[s] an opinion, ~~at the Execution Time and at~~ dated the Closing Date, ~~letters~~in form and substance reasonably satisfactory to the Representative[s]. g) Counsel for the Owner Trustee (who shall be satisfactory to the Representative[s]) shall have furnished to the Representative[s] an opinion, dated ~~respectively as of~~ the ~~Execution Time~~ Closing Date, in form and substance reasonably satisfactory to the Representative[s]. h) Counsel for the Company (who shall be satisfactory to the Representative[s]) shall have furnished to the Representative[s] (i) opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative[s], relating to certain bankruptcy matters and Federal income tax matters and (ii) a signed negative assurance letter, dated as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative[s], ~~confirming that they are a registered public accounting firm that is independent with respect~~ relating to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory~~ Preliminary Prospectus, the Prospectus and the ~~Prospectus~~ Ratings FWP. i) The Representative[s] shall have received a letter, dated the Closing Date or such other date as may be agreed upon between the Representative[s] and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, ~~excluding any questions of legal interpretation. References~~ from certified public accountants (who shall be satisfactory to the ~~Prospectus~~ Representative[s]), substantially in ~~this paragraph (e) include any supplement thereto at~~ the ~~date of~~ form previously approved by the ~~letter~~Representative[s]. (fj) ~~Subsequent to~~ The Offered Notes shall have received the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease ratings specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Ratings FWP. (gk) Prior to the Closing Date, the Company shall have furnished to the ~~Representatives~~ Representative[s] such further information, certificates and documents as the ~~Representatives~~ Representative[s] may reasonably request. (hl) ~~FINRA shall not have raised any objection with respect~~ Subsequent to the ~~fairness or reasonableness~~ date of the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market~~Prospectus, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 there shall not have been ~~fulfilled when and as provided~~ any material adverse change in ~~this Agreement,~~ the business or ~~if any~~ properties of the ~~opinions, negative assurance letters and certificates mentioned above or elsewhere~~ Company which 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~~ reasonable judgment of the ~~Underwriters hereunder may be canceled at~~Representative[s], after consultation with the Company, materially impairs the investment quality of the Offered Notes so as to make it impractical or ~~at any time prior to,~~ inadvisable to proceed with the ~~Closing Date~~ public offering or the delivery of such Offered Notes as contemplated 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 Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing DateProspectus.

Appears in 1 contract

Samples: Underwriting Agreement (GE Dealer Floorplan Master Note Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Skadden, ~~Gotshal~~ Arps, Slate, Xxxxxxx & ~~Xxxxxx~~ Xxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its ~~opinions~~ opinion and negative assurance ~~letter, each~~ letter dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion ~~or opinions~~ and negative assurance ~~letter, each~~ letter dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of ~~the~~ such Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable), 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~~ such Closing ~~Date~~Date or settlement date (as applicable); (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been ~~issued~~ issued, and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have furnished to the Representative a certificate signed by the signed by the Chief Executive Officer and the Chairman of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (f) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), comfort letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the ~~audited~~ financial statements of the Company ~~for~~ included in the ~~period from June 29~~Registration Statement, ~~2020 (date of inception) through July 24, 2020,~~ Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their opinion the ~~audited~~ financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been ~~(i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii)~~ any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (gh) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (hi) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ij) The Securities shall be duly ~~listed~~ listed, subject to notice of ~~issuance~~ issuance, on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the ~~Effective~~ Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Insider ~~Letters~~ Letter, the Administrative Services Agreement and the Registration Rights Agreement. (kl) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (mn) ~~The several obligations~~ On or before the date of this Agreement, the Representative shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ~~Underwriters to purchase Option Securities hereunder are subject to~~ Financial Crimes Enforcement Network (“FinCEN”) from the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, Company in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~from KPMG substantially in the same form and substance~~ along with such additional supporting documentation as the ~~letter furnished to~~ Representative has requested in connection with the ~~Underwriters pursuant to Section 6(e) hereof; provided that~~ verification of the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiesforegoing certificate. 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, negative assurance letters~~ 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 ~~canceled~~ cancelled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 Ropes~~ in electronic format to Xxxxx Xxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, ~~at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,~~ Attention: ~~Xxxx X. Xxxxx~~Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Samples: Underwriting Agreement (PWP Forward Acquisition Corp. I)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal & Xxxxxx LLP~~Xxxxxxxx Xxxxxx, counsel for the Company, to have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their opinion, ~~each~~ dated the ~~Closing~~ Effective Date and addressed to the ~~Representatives~~Representative in the form attached as Exhibit C. In rendering such opinion, ~~in a form reasonably acceptable~~ such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the Delaware General Corporation Law, the State of New York, and the Federal laws of the United States, to the ~~Representatives~~extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes & Xxxx~~ Xxxxxxx XxXxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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 's knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxxxxx Xxxxx Xxxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the ~~Representatives~~Representative, confirming that they are a registered ~~public accounting firm that is~~ independent ~~with respect to the Company~~ accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the ~~audited~~ unaudited interim financial ~~statements~~ information of the Company for the [ ]-month period ~~from June 29~~ended [ ] and as at [ ], ~~2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable,~~ in accordance with Statement on Auditing Standards No. 100 and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form ~~in all material respects~~ with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission~~; and~~; (ii) ~~they have performed~~ on the basis of a reading of the latest unaudited financial statements made available by the Company; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the -month period ended [ ] and as at [ ] [,as indicated in their report dated ] ; carrying out certain ~~other~~ specified procedures as (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 ~~result~~ reading of ~~which they determined that certain information~~ the minutes of ~~an accounting~~the meetings, ~~financial or statistical nature (which is limited to accounting~~if any, ~~financial or statistical information derived from~~ of the ~~general accounting records~~ stockholders, directors and audit, governance and nominating committees of the Company; 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 [ ], nothing came to their attention which caused them to believe that: (1) ~~set forth~~ any unaudited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus~~, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees~~ ; and (2) with ~~the accounting records of the Company, excluding any questions of legal interpretation. References~~ respect to the ~~Prospectus in this paragraph (e) include~~ period subsequent to [ ], there were any ~~supplement thereto~~ changes, at a specified date not more than five days prior to the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the ~~sole judgment~~ long-term debt of the ~~Representatives, so material and adverse as to make it impractical~~ Company or ~~inadvisable to proceed with the offering or delivery~~ capital stock of the ~~Securities as contemplated by~~ Company or decreases in the ~~Registration Statement (exclusive~~ stockholders' equity of ~~any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date,~~ the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness net loss or ~~reasonableness~~ loss before income taxes or in total or per share amounts of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given net loss 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~~ as compared with the ~~office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein,~~ amounts shown on the ~~Closing Date.~~[ ] [insert same date as above]

Appears in 1 contract

Samples: Underwriting Agreement (Highlands Acquisition Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the ~~Underwritten Securities and the Option Securities, as the case may be,~~ Purchased Bonds shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the ~~Execution Time,~~ date hereof and the ~~Closing Date and any Option~~ 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ No stop order suspending the effectiveness of the Registration Statement ~~or any notice objecting to its use~~ shall ~~have been issued~~ be in effect and no proceedings for that purpose shall ~~have been instituted~~ then be pending before, or ~~threatened~~threatened by, the Commission. (b) The Company shall have ~~requested and caused Weil, Gotshal~~ furnished to the Representatives the opinion of Sidley Austin Brown & ~~Xxxxxx LLP~~Wood, counsel for the Company, ~~to have furnished to the Representatives its opinions and negative assurance letter, each~~ dated the Closing Date ~~and addressed~~ axx xxxxxxxxx to ~~the~~ xxx Representatives, in a form ~~reasonably acceptable~~ and substance satisfactory to each of the ~~Representatives~~Representatives and their counsel. (c) The Representatives shall have received from ~~Ropes~~ Winston & ~~Xxxx LLP~~Strawn, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated ~~the Closing Date and addressed to the Representatives~~xxx Xxosing Date, with respect to the issuance and sale of the ~~Securities~~Purchased Bonds, the Mortgage, the Registration Statement, the ~~Statutory Prospectus, the~~ 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer and the principal financial~~ Treasurer or ~~accounting officer~~ Assistant Treasurer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary~~ Prospectus, ~~the Prospectus and~~ any amendment or supplement ~~thereto,~~ to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing ~~Date~~ 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus and the~~ Prospectus (exclusive of any amendment or supplement thereto), there has been no ~~Material Adverse Effect~~material adverse change in the financial condition, 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 Statutory Prospectus and~~ by the Prospectus (exclusive of any amendment or supplement thereto); and (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to his or her knowledge, threatened by the Commission. (e) ~~The~~ On the date hereof and on the Closing Date, the Company shall have requested and caused ~~KPMG~~ PricewaterhouseCoopers LLP to ~~have furnished~~ furnish to the ~~Representatives, at the Execution Time and at the Closing Date,~~ 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, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the ~~Execution Time or~~date of this Agreement, or if earlier, the respective dates as of which information is given in the Registration Statement ~~(exclusive of any amendment thereof), the Statutory Prospectus~~ and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there shall not have been (i) any change or decrease specified in the letter ~~or letters~~ referred to in paragraph (e) of this Section 6 5 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings~~financial condition, ~~business, management, properties, assets, rights, operations, condition (financial~~ business or ~~otherwise) or prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus and the~~ Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the public offering or delivery of the ~~Securities~~ Series 99 Bonds or the Series 100 Bonds, respectively, as contemplated by ~~the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and~~ the Prospectus (exclusive of any amendment or supplement thereto). (g) On the Closing Date, (i) the Series 99 Bonds and the Series 100 Bonds shall be rated A3 (stable) and A3 (stable), respectively, by Moody's Investors Service, Inc. and A- (stable) and A- (stable), respexxxxxxx, by Standard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Purchased Bonds have such ratings, and (ii) subsequent to the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Purchased Bonds or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Purchased Bonds or any of the Company's other debt securities. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and~~ opinions or 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~~their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section ~~6 shall~~ 5 will be delivered at the office of ~~Ropes & Xxxx LLP,~~ counsel for the ~~Underwriters~~Company, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~Sidley Austin Brown & Wood, ~~Xxx Xxxx~~10 South Dearborn Street, ~~Xxx Xxxx~~ Suite 5500, Chicago, Ilxxxxxx 00000, ~~Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date~~ox xxe Xxxxxxx Xxxx.

Appears in 1 contract

Samples: Underwriting Agreement (Commonwealth Edison Co)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ MxXxxxxxx Will & ~~Xxxxxx~~ Exxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives,~~ Representative in a the form ~~reasonably acceptable to the Representatives~~attached as Exhibit A hereto. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Akin Gump Sxxxxxx Hxxxx & ~~Xxxx~~ Fxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Rxxxxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~April 11, ~~2020~~ 2013 (~~date of~~ inception) ~~through July 24~~to April 19, ~~2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable~~2013, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, ~~business, management, properties, assets, rights, operations, condition (financial~~ business or ~~otherwise) or prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Contribution Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement and each of the Insider ~~Letters and the Registration Rights Agreement~~Letters. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be ~~deposited~~ wired to the Company and the Company shall direct the escrow agent to deposit such funds into the Trust ~~Account~~Account and to hold such funds in escrow therein. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Akin Gump Sxxxxxx Hxxxx & ~~Xxxx~~ Fxxx LLP, counsel for the Underwriters, at ~~0000~~ Oxx Xxxxxx ~~xx xxx Xxxxxxxx~~Xxxx, Xxx Xxxx, Xxx ~~Xxxx~~ Xxxx, 00000~~, Attention: Xxxx X. Xxxxx~~, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Silver Eagle Acquisition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions ~~and negative assurance letter, each~~ dated the Closing Date or the settlement date, as the case may be, and addressed to the Representatives, in a form ~~reasonably acceptable~~ satisfactory to the Representatives. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or the settlement date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or the settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of ~~the Closing Date~~ such date with the same effect as if made on ~~the Closing Date~~ such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to ~~the Closing Date~~such 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the Representatives, at the Execution Time and at the Closing ~~Date~~Date or the settlement date, as the case may be, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~August 28, 2020 (~~date of~~ inception) through ~~July 24~~September 9, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date or the settlement date, as the case may be, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market,~~ New York Stock Exchange satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Services Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or the settlement date, as the case may be, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be wired to the Company and the Company shall direct the trustee to deposit such funds into the Trust Account and to hold such funds in the Trust Account such that the cumulative amount deposited into the Trust ~~Account~~Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the Offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or the settlement date, as the case may be, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxxxxxxx Xxxxxx, ~~Xxx~~ Xxxxx 0000, Xxxx Xxxx, ~~Xxx Xxxx~~ Xxxxxxxxxx 00000, Attention: ~~Xxxx~~ Xxxxx X. ~~Xxxxx~~Xxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Fortress Value Acquisition Corp. III)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten~~ Securities ~~and the Option Securities, as the case may be,~~ shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution ~~Time,~~ Time and the ~~Closing Date and any Option~~ Closing Date, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of ~~its~~ their respective obligations hereunder and to the following additional conditions: (a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)); 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~~ pursuant to Rule 401(g)(2) of the Act that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened. (b) The Company shall have requested and caused ~~Weil~~Skadden, ~~Gotshal~~ Arps, Slate, Xxxxxxx & ~~Xxxxxx~~ Xxxx, LLP, counsel for the Company, to have furnished to the Representatives ~~its opinions~~ their opinion and ~~negative assurance~~ letter, in each case dated the Closing Date and addressed to the Representatives, in ~~a form reasonably acceptable~~ the forms of Exhibit A and Exhibit B, respectively. 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, the General Corporation Law of Delaware or the Federal laws of the United States, to the ~~Representatives~~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. Such opinion may contain customary assumptions, exceptions, limitations, qualifications and comments. In addition, such opinion may contain statements to the effect that: (A) such counsel is expressing no opinion regarding, nor is such counsel predicting or guaranteeing, the outcome of any tobacco-related product liability case, and (B) such counsel is expressing no opinion regarding the effect of the outcome, whether financial or otherwise, of any tobacco-related product liability case on the Company or the Loews Common Stock. (c) The Company shall have requested and caused Xxxx X. Xxxxxx, general counsel for Loews Corporation, to have furnished his opinion, dated the Closing Date and addressed to the Representatives in the form of Exhibit C. (d) The Company shall have requested and caused Xxxxxx X. Xxxxxxxx, general counsel for Lorillard Tobacco Company, to have furnished his opinion, dated the Closing Date and addressed to the Representatives in the form of Exhibit D. (e) The Selling Stockholder shall have requested and caused Xxxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives in the form of Exhibit E. (f) The Representatives shall have received from ~~Ropes~~ Cravath, Swaine & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the ~~issuance and~~ sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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 reasonably request for the purpose of enabling them to pass upon such matters. (dg) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary~~ Statement, the Final Prospectus, the ~~Prospectus~~ Disclosure Package and any ~~amendment~~ supplements or ~~supplement thereto,~~ amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing ~~Date~~ Date, provided, however, that if any such representation or warranty is already qualified by materiality, such representation or warranty as so qualified is true and correct in all respects on and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be 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~~ pursuant to Rule 401(g)(2) of the Act that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Statutory Prospectus 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (eh) The Selling Stockholder shall have furnished to the Representatives a certificate, signed by the Selling Stockholder, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package 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. (i) The Company shall have requested and caused ~~KPMG~~ Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a independent registered public ~~accounting firm that is independent~~ accountants with respect to the Company 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 audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicablethereunder, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement, the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission~~; and~~; (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 period ended March 31, 2006 and as at March 31, 2006 carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the shareholders, directors and executive and audit committees of the Company and its significant 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 December 31, 2005, 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 and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus; (2) with respect to the period subsequent to March 31, 2006, 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 corresponding amounts shown on the March 31, 2006 balance sheets included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from April 1, 2006 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in net income of the Company and its subsidiaries or in operating income of the Company and its subsidiaries, in each case, on either a total or per share basis, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; (3) the information included or incorporated by reference in the Registration Statement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K; (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~~Company and its subsidiaries) set forth or incorporated by reference in the Registration ~~Statement,~~ Statement and the ~~Statutory~~ Final Prospectus and in Exhibit 12 to the ~~Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus,~~ Registration Statement agrees with the accounting records of the ~~Company~~Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (ei) include any supplement thereto at the date of the letter. (fj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof~~), the Statutory Prospectus~~ ) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ei) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, ~~business, management, properties, assets, rights, operations, condition (financial~~ business or ~~otherwise) or prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (gk) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (hl) ~~FINRA~~ Subsequent to the Execution Time, there shall not have ~~raised~~ been any ~~objection with respect to~~ decrease in the ~~fairness or reasonableness~~ rating of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company~~, dated~~ ’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the ~~Option Closing Date, confirming~~ 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 ~~certificate delivered on~~ direction of the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securitiespossible change. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the ~~office~~ offices of ~~Ropes~~ Cravath, Swaine & ~~Xxxx~~ Xxxxx LLP, counsel for the Underwriters, at ~~0000~~ 000 Xxxxxx ~~xx xxx Xxxxxxxx~~Xxxxxx, Xxx Xxxx, Xxx ~~Xxxx~~ Xxxx, 00000~~, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein~~, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Loews Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Skadden, ~~Gotshal~~ Arps, Slate, Xxxxxxx & ~~Xxxxxx~~ Xxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its ~~opinions~~ opinion and negative assurance letter, each dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and ~~the principal financial or accounting~~ another officer of the Company, dated the Closing Date, and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: ~~(i)~~ i. the representations and warranties of the Company in this Agreement are true and correct on and as of ~~the Closing Date~~ such date with the same effect as if made on ~~the Closing Date~~ such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to ~~the Closing Date;~~such date; Credit Suisse Securities (USA) LLC [ ● ], 2021 (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; and (iii) . since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Withum to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentative. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date and any settlement date, as applicable, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Support Services Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or any settlement date, ~~the Sponsor shall have caused~~ as applicable, the purchase price for the Private Placement Warrants to shall be deposited into the Trust ~~Account~~Account at X.X. Xxxxxx Chase Bank, N.A., with Continental Stock Transfer & Trust Company acting as trustee. (l) No order preventing or suspending the sale of the ~~Units~~ Securities in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Credit Suisse Securities (USA) LLC [ ● ], 2021 The documents required to be delivered by this Section 6 shall be ~~delivered~~ delivered, electronically, or if by mail, at the office of ~~Ropes~~ Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxxx Xxxxxx, Xxx Xxxx, ~~Xxx Xxxx~~ XX 00000, Attention: ~~Xxxx~~ Xxxxxxx X. ~~Xxxxx~~Xxxxxxxx and Xxxxxxxx X. Xxxxxx, unless otherwise indicated herein, on the Closing ~~Date~~Date and any settlement date, as applicable.

Appears in 1 contract

Samples: Underwriting Agreement (Crucible Acquisition Corp. II)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Option 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~July 21, 2020 (date of inception) through ~~July 24~~[•], 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Gores Metropoulos II, 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,~~ Shares shall be subject to the accuracy of the representations and warranties on the part of the Company and Selling Stockholders contained herein as of the Execution ~~Time,~~ Time and the ~~Closing Date and any Option~~ Closing Date, 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 Selling Stockholders of ~~its~~ their obligations hereunder and to the following additional conditions: (a) ~~The~~ If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any ~~supplement thereto~~such supplement, shall have been filed in the manner and within the time period required by ~~Rule 424(b)~~such Rule; and the Registration Statement shall remain effective and no stop order suspending the effectiveness of the Registration Statement ~~or any notice objecting to its use~~ shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company and Selling Stockholders shall have ~~requested and caused Weil, Gotshal~~ furnished to the Representative the opinion of Ropes & ~~Xxxxxx~~ Xxxx LLP, counsel for the ~~Company~~Company and the Selling Stockholders, ~~to have furnished to the Representatives its opinions and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, substantially in a the form ~~reasonably acceptable to the Representatives.~~of Exhibit B. Underwriting Agreement April 20, 2004 (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxx Xxxx Xxxx & ~~Xxxx~~ Freidenrich LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the ~~Securities~~Shares, the Registration Statement~~, the Statutory Prospectus~~, the 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 request for the purpose of enabling them to pass upon such matters. The opinion or opinions of such counsel shall be rendered to the Underwriters at the request of the Company and shall so state therein. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by the Chairman of the Board, Chief Executive ~~Officer~~ Officer, Senior Vice President or Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary~~ Statement, the Prospectus, any supplements to the Prospectus ~~and any amendment or supplement thereto,~~ and this Agreement and that: : (i) as of the Effective Date, the statements made in the Registration Statement and the Prospectus were true and correct and neither the Registration Statement nor the Prospectus contained an untrue statement of material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, respectively, not misleading, (ii) since the Effective Date, no event has occurred which should have been set forth in a supplement or amendment to the Prospectus which has not been set forth in such a supplement or amendment, (iii) since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any Material Adverse Effect, or any development involving a prospective material adverse change in or affecting the business, properties, financial conditions, results of operations or prospects 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 Registration Statement and Prospectus, and since such dates, neither the Company nor any of its Subsidiaries has entered into any material transaction not referred to in the Registration Statement and the Prospectus, (iv) neither the Company nor any of its subsidiaries has any material contingent obligations which are not disclosed in the Registration Statement and the Prospectus, (v) the representations and warranties of the Company ~~in this Agreement~~ herein are true and correct ~~on and~~ in all material respects as of the Closing ~~Date with the same effect as if made on the Closing Date~~ Date, and (vi) 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; , and (iivii) 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 are pending or, to the ~~Company’s~~ best of such officers’ knowledge, ~~threatened; and (iii) since~~ are threatened by the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Commission. (e) ~~The Company shall have requested and caused KPMG to have furnished to the Representatives, at~~ At the Execution Time and at the Closing Date, Ernst & Young shall have furnished to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included substantially in the ~~Registration Statement~~form of Exhibit C. Underwriting Agreement April 20, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.2004 (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Time, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), earnings, net worth, business, properties, results of operations or prospects of the ~~Company~~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 ~~Statutory Prospectus~~ Registration Statement and the Prospectus (exclusive of any supplement ~~thereto~~thereto filed after the Execution Time, other than the Prospectus Supplement) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~this Agreement. (g) ~~Prior~~ At the Execution Time, the Selling Stockholders shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from the Selling Stockholders. (h) You shall be satisfied that, and you shall have received a certificate dated the Closing Date, from each Selling Stockholder to the effect that, as of the Closing Date: (i) the representations and warranties made by such Selling Stockholder herein are true and correct in all material respects on the Closing Date, and (ii) such Selling Stockholder has complied with all obligations and satisfied all conditions under this Agreement that are required to be performed or satisfied on its part at or prior to the Closing Date. (i) At the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which Shares shall have been ~~provided~~ approved for inclusion in the Nasdaq National Market, subject only to ~~the Representatives~~official notice of issuance. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company ~~will deliver~~ shall have delivered to the ~~Representatives executed copies of~~ Transfer Agent a direction letter from the ~~Trust Agreement,~~ Company stating that the ~~Warrant Agreement,~~ certificates for all the ~~Insider Letters and~~ Common Shares to be sold by the ~~Registration Rights Agreement~~Selling Stockholders pursuant to this Agreement on such Closing Date may upon due presentment for transfer be reissued by the Transfer Agent to future transferees without a legend restricting transfers. (k) ~~At least one Business Day prior~~ Prior to the Closing Date, the ~~Sponsor~~ Company and the Selling Stockholders shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the ~~Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v)~~ Representative such further information, certificates and documents as ~~Representatives~~ the Representative may reasonably ~~request with respect to the issuance of such Option Securities~~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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be in 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. Notice of such cancellation shall be given to the Company and the Selling Stockholders in writing or by telephone or facsimile confirmed in writing. Underwriting Agreement April 20, 2004 The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes~~ Xxxx Xxxx Xxxx & ~~Xxxx~~ Freidenrich LLP, counsel for the ~~Underwriters,~~ Underwriters at 0000 ~~Xxxxxx xx xxx Xxxxxxxx~~Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxx ~~Xxxx~~Xxxxx, ~~Xxx Xxxx~~ XX 00000-0000, Attention: ~~Xxxx X. Xxxxx, unless otherwise indicated herein,~~ Xxxxxxxxx Xxxxx (fax no. 000-000-0000) on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Charlotte Russe Holding 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,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Offered Notes: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or ~~threatened~~to the knowledge of the Company, threatened by the Commission. (b) ~~The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for~~ Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Representatives) shall have furnished to the Representatives ~~its opinions and negative assurance letter~~an opinion or opinions, ~~each~~ dated the Closing ~~Date~~ Date, in each case in form and ~~addressed~~ substance reasonably satisfactory to the ~~Representatives~~Representatives and counsel for the Underwriters, ~~in a form reasonably acceptable~~ relating to ~~the Representatives~~certain enforceability, securities law and security interest matters. (c) In-house counsel for each of the Company and GE Capital shall have furnished to the Representatives an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and counsel for the Underwriters. (d) The Representatives shall have received from ~~Ropes & Xxxx~~ MxXxx Xxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the related Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities, the Registration Statement, the Statutory Prospectus~~Offered Notes, the Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as ~~they~~ the Representatives 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 ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signatory of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (CDF Funding, 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,~~ Notes shall be ~~subject~~ subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company contained herein as of the ~~Execution Time,~~ date hereof and the ~~Closing Date and any Option~~ Closing Date, to the accuracy of the statements of the ~~Company~~ Company’s officers on and as of the Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The ~~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 prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule ~~424(b)~~433 under the Act shall have been made, and no such filings shall have been made without the consent of the Representatives; ~~and~~ no stop order suspending the effectiveness of the Registration Statement or any ~~notice objecting to its~~ part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted~~ initiated or ~~threatened~~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~~ Representatives shall ~~have requested and caused Weil~~be furnished with opinion letters, ~~Gotshal & Xxxxxx LLP~~dated the Closing Date, of: (i) The Company, that address substantially the matters set forth in Exhibit A; and (ii) Xxxxx Day, counsel for the Company, ~~to have furnished to~~ that address substantially the ~~Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representatives,~~ matters set forth in ~~a form reasonably acceptable to the Representatives.~~Exhibit B. (c) The Representatives shall have received from ~~Ropes~~ Hunton & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions ~~and negative assurance letter, each~~ dated the Closing Date ~~and addressed to the Representatives,~~ with respect to ~~the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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~~President, ~~signed by the Chief Executive Officer and the principal financial~~ Senior Vice President or ~~accounting officer~~ any Vice President of the Company, dated the Closing Date, as to the matters set forth in paragraphs (a) and (h) of this Section 7 and to the further effect that the signers of such certificate have ~~carefully~~ examined the Registration ~~Statement each Preliminary Prospectus~~Statement, the Prospectus ~~and any amendment or supplement thereto,~~ and this Agreement and that, to the best of his or her knowledge: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of 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;; 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material adverse change in the condition of the Company and its subsidiaries taken as a whole, ~~except as~~ financial or otherwise, whether or not arising in the ordinary course of business, from that set forth in or contemplated in by the ~~Statutory Prospectus and~~ Registration Statement, the ~~Prospectus (exclusive of any supplement thereto)~~most recent Preliminary Prospectus, or the Prospectus. (e) The ~~Company~~ Representatives shall have ~~requested~~ received letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the date of this Agreement and ~~caused KPMG to have furnished to the Representatives, at the Execution Time and at the~~ Closing Date, ~~letters~~respectively, ~~dated respectively as of the Execution Time~~ and ~~as of the Closing Date,~~ in form and substance satisfactory to the Representatives~~, confirming~~ ) advising that (i) they are a an independent registered public accounting firm ~~that is independent~~ with respect to the Company ~~within the meaning of~~ as required by the Act and ~~the Exchange Act and the applicable~~ published rules and regulations ~~adopted by~~ of the Commission ~~thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29~~thereunder, ~~2020~~ (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (iii) in their ~~opinion~~ opinion, the ~~audited~~ consolidated financial statements and ~~financial statement~~ supplemental schedules included or incorporated by reference in the Registration Statement, the ~~Statutory Prospectus and~~ Pricing Disclosure Package or the Prospectus and ~~reported on~~ covered by ~~them~~ their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the ~~related~~ published rules and regulations ~~adopted by~~ of the ~~Commission; and~~ Commission thereunder, (iiiii) that they have performed ~~certain other specified procedures as~~ limited procedures, not constituting an audit, including a ~~result~~ reading of ~~which they determined that certain information of an accounting,~~ the latest available interim financial ~~or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records~~ statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Pricing Disclosure Package or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) ~~set forth~~ (1) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the ~~Statutory~~ Pricing Disclosure Package or the Prospectus for them to be in conformity with generally accepted accounting principles or (2) any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus and except as set forth in or contemplated by the Registration Statement, the Pricing Disclosure Package or the Prospectus, ~~including~~ there were any adverse changes, at a specified date not more than three business days prior to the ~~information set forth under~~ date of the ~~captions “Dilution” and “Capitalization”~~ letter, in the ~~Statutory~~ capital stock of the Company, increases in long-term debt of the Company on a consolidated basis as compared to the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus ~~and~~ or, as of a specified date, there were any decreases in stockholder’s equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus, ~~agrees~~ or for the period from the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the ~~Company~~Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation~~. References~~ ) have found such information and percentages to be in agreement with the ~~Prospectus in this paragraph (e) include any supplement thereto at the date~~ relevant accounting and financial information of the ~~letter~~Company referred to in such letter in the description of the procedures performed by them. (f) Subsequent to the ~~Execution Time or, if earlier, the~~ respective dates as of which information is given in the Registration Statement ~~(exclusive of any amendment thereof), the Statutory Prospectus~~ and the ~~Prospectus (exclusive of any supplement thereto)~~Pricing Disclosure Package, there shall not have been ~~(i)~~ any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 7 which makes it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated by the Pricing Disclosure Package. (g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Notes or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of the Exchange Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such debt securities) and (ii) ~~any change~~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 Notes or of any ~~development involving~~ other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a ~~prospective change~~possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to any third parties insuring such debt securities). (h) Since the most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, ~~in or affecting the earnings, business, management, properties, assets, rights, operations, condition (~~financial or otherwise~~) or prospects of the Company~~, whether or not arising ~~from transactions~~ in the ordinary course of business, ~~except~~ otherwise than as set forth in or contemplated in the ~~Statutory Prospectus~~ Pricing Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~ Prospectus, the effect of ~~which, in any case referred to in clause (i) or (ii) above, is,~~ which is in the ~~sole~~ judgment of the ~~Representatives,~~ Underwriters so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to proceed with the ~~offering~~ offering, sale or the delivery of the ~~Securities as~~ Notes on the terms and in the manner contemplated by ~~the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus~~ this Agreement and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (gi) ~~Prior~~ No Representative shall have advised the Company that the Registration Statement, Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading. (j) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Notes; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Notes. (k) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished to the Representatives such ~~further~~ other customary information, certificates and documents as ~~the Representatives~~ they may reasonably request. (hl) ~~FINRA~~ The Company and Trustee shall ~~not~~ have ~~raised any objection with respect~~ entered into the supplemental indenture relating to the ~~fairness or reasonableness of~~ Notes, and the ~~underwriting or other arrangements of~~ Representatives shall have received counterparts, conformed as executed thereof, and the ~~transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which~~ Notes shall have been ~~provided to the Representatives. (j) On the Effective Date,~~ duly executed and delivered by the Company ~~shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement~~ and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated authenticated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesTrustee. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as ~~provided in~~ required by this Agreement, or if any of the ~~opinions, negative assurance letters~~ 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~~their counsel, this Agreement and all obligations of the Underwriters hereunder may be ~~canceled~~ 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~~ writing, or by ~~telephone~~ telephone, telegraph or facsimile transmission confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Northern States Power Co /Wi/)

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,~~ Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained ~~herein as of the Execution Time, the Closing Date and any Option Closing Date~~in this Agreement, to the accuracy of the statements of the Company made in any applicable officers’ certificates pursuant to the provisions hereof, to the performance by the Company of its obligations ~~hereunder~~ under this Agreement and to the following additional ~~conditions~~conditions applicable to the Note Offering: (a) ~~The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ 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~~ instituted, or ~~threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for~~ to the knowledge of the Company, threatened by the Commission. 11 GEDFMNT 2015-2: Underwriting Agreement b) Counsel to each of the Company, GE Capital and the Issuer (who shall be satisfactory to the Representatives) shall have furnished to the Representatives ~~its opinions and negative assurance letter~~an opinion or opinions, ~~each~~ dated the Closing ~~Date~~ Date, in each case in form and ~~addressed~~ substance reasonably satisfactory to the Representatives and counsel for the Representatives, relating to certain enforceability, securities law and security interest matters. c) In-house counsel for each of the Company and GE Capital shall have furnished to the Representatives an opinion, dated the Closing Date, in a form and substance reasonably ~~acceptable~~ satisfactory to the Representatives and counsel for the Representatives. (cd) The Representatives shall have received from ~~Ropes~~ Mxxxxx, Xxxxx & ~~Xxxx~~ Bxxxxxx LLP, counsel for the ~~Underwriters~~Representatives, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing ~~Date and addressed to the Representatives~~Date, with respect to the issuance and sale of the ~~Securities, the Registration Statement, the Statutory Prospectus~~Offered Notes, the Prospectus ~~(together with any supplement thereto)~~ and such other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as ~~they~~ the Representatives 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 ~~Chief Executive Officer and~~ President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signatory of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary Prospectus,~~ Program Documents to which the ~~Prospectus and any amendment or supplement thereto~~Company is a party, and ~~this Agreement and~~ that~~: (i)~~ , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct ~~on and as of the Closing Date with the same effect as if made on the Closing Date~~ in all material respects, 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;. f) Counsel for the Indenture Trustee (~~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,~~ who shall be satisfactory to the ~~Company’s knowledge, threatened; and (iii~~Representatives) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall ~~have requested and caused KPMG to~~ have furnished to the ~~Representatives~~Representatives an opinion, ~~at the Execution Time and at~~ dated the Closing Date, ~~letters~~in form and substance reasonably satisfactory to the Representatives. g) Counsel for the Owner Trustee (who shall be satisfactory to the Representatives) shall have furnished to the Representatives an opinion, dated ~~respectively as of~~ the ~~Execution Time~~ Closing Date, in form and substance reasonably satisfactory to the Representatives. h) Counsel for the Company (who shall be satisfactory to the Representatives) shall have furnished to the Representatives (i) opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, relating to certain bankruptcy matters and Federal income tax matters and (ii) a signed negative assurance letter, dated as of the Closing Date, in form and substance satisfactory to the Representatives, ~~confirming that they are a registered public accounting firm that is independent with respect~~ relating to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the ~~Statutory~~ Preliminary Prospectus, the Prospectus and the ~~Prospectus~~ Ratings FWP. i) The Representatives shall have received a letter, dated the Closing Date or such other date as may be agreed upon between the Representatives and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, ~~excluding any questions of legal interpretation. References~~ from certified public accountants (who shall be satisfactory to the ~~Prospectus~~ Representatives), substantially in ~~this paragraph (e) include any supplement thereto at~~ the ~~date of~~ form previously approved by the ~~letter~~Representatives. (fj) ~~Subsequent to~~ The Offered Notes shall have received the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease ratings specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Ratings FWP. (gk) 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. (hl) ~~FINRA shall not have raised any objection with respect~~ Subsequent to the ~~fairness or reasonableness~~ date of the ~~underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market~~Prospectus, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 there shall not have been ~~fulfilled when and as provided~~ any material adverse change in ~~this Agreement,~~ the business or ~~if any~~ properties of the ~~opinions, negative assurance letters and certificates mentioned above or elsewhere~~ Company which 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~~ reasonable judgment of the ~~Underwriters hereunder may be canceled at~~Representatives, after consultation with the Company, materially impairs the investment quality of the Offered Notes so as to make it impractical or ~~at any time prior to,~~ inadvisable to proceed with the ~~Closing Date~~ public offering or the delivery of such Offered Notes as contemplated 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 Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing DateProspectus.

Appears in 1 contract

Samples: Underwriting Agreement (CDF Funding, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten Securities~~ Firm Units and the ~~Option Securities~~Optional Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxxxxx & Xxxxx LLP and Xxxxxx ~~LLP~~and Calder, counsel for the Company, to have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, each in a substantially the form ~~reasonably acceptable~~ as previously agreed to by the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the ~~Securities~~Units, the Registration Statement, the Statutory Prospectus, the 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 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 one of the Co-Chief Executive ~~Officer~~ Officers and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) 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~~Date or settlement date (as applicable); (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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in substantially the form ~~and substance satisfactory~~ as previously agreed to by the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~January 11, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~[January 13, ~~2020~~2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the ~~Securities~~ Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The ~~Securities~~ Units shall be duly listed subject to notice of issuance on ~~the Nasdaq Capital Market~~Nasdaq, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Services Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxx Xxxxxx, ~~Xxx Xxxx~~Xxxxx 0000, ~~Xxx Xxxx~~ Xxxxxxx, Xxxxx 00000, Attention: Xxxx X. ~~Xxxxx~~Xxxxxxxx, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Samples: Underwriting Agreement (Plum Acquisition Corp. I)

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,~~ Bonds shall be ~~subject~~ subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company contained herein as of the ~~Execution Time,~~ date hereof and the ~~Closing Date and any Option~~ Closing Date, to the accuracy of the statements of the ~~Company~~ Company’s officers on and as of the Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The ~~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 prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule ~~424(b)~~433 under the Act shall have been made, and no such filings shall have been made without the consent of the Representatives; ~~and~~ no stop order suspending the effectiveness of the Registration Statement or any ~~notice objecting to its~~ part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted~~ initiated or ~~threatened~~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~~ Representatives shall ~~have requested~~ be furnished with opinions, dated the Closing Date, of (i) Xxxxx X. Xxxxxx, Vice President and ~~caused Weil~~Deputy General Counsel of Xcel Energy Inc., ~~Gotshal~~ substantially in the form included as Exhibit A, (ii) Faegre & Xxxxxx LLP, counsel for the Company, ~~to have furnished to~~ substantially in the ~~Representatives its opinions~~ form included as Exhibit B and ~~negative assurance letter~~(iii) Xxxxx Day LLP, ~~each dated~~ Chicago, Illinois, counsel for the ~~Closing Date and addressed to~~ Company, substantially in the ~~Representatives, in a~~ form ~~reasonably acceptable to the Representatives.~~included as Exhibit C. (c) The Representatives shall have received from ~~Ropes~~ Xxxxxxx Xxxxxxx & ~~Xxxx~~ Xxxxxxxx LLP, New York, New York, counsel for the Underwriters, such opinion or opinions ~~and negative assurance letter, each~~ dated the Closing Date ~~and addressed to the Representatives,~~ with respect to ~~the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial~~ President or ~~accounting officer~~ any Vice President of the Company, dated the Closing Date, as to the matters set forth in paragraphs (a) and (h) of this Section 7 and to the further effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary Prospectus~~Statement, the Prospectus ~~and any amendment or supplement thereto,~~ and this Agreement and that, to the best of his or her knowledge: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of 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;; 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material adverse change in the condition of the Company and its subsidiaries taken as a whole, ~~except~~ financial or otherwise, or in the earnings, affairs or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, from that set forth in or contemplated in by the ~~Statutory~~ Registration Statement, the most recent Preliminary Prospectus ~~and~~ or the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (e) The ~~Company~~ Representatives shall have ~~requested~~ received letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the date of this Agreement and ~~caused KPMG to have furnished to the Representatives, at the Execution Time and at the~~ Closing Date, ~~letters~~respectively, ~~dated respectively as of the Execution Time~~ and ~~as of the Closing Date,~~ in form and substance satisfactory to the Representatives~~, confirming~~ ) advising that (i) they are a an independent registered public accounting firm ~~that is independent~~ with respect to the Company ~~within the meaning of~~ as required by the Act and ~~the Exchange Act and the applicable~~ published rules and regulations ~~adopted by~~ of the Commission ~~thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29~~thereunder, ~~2020~~ (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (iii) in their ~~opinion~~ opinion, the ~~audited~~ consolidated financial statements and ~~financial statement~~ supplemental schedules included or incorporated by reference in the Registration Statement, ~~the Statutory~~ Preliminary Prospectus or Prospectus and covered by their opinion filed with the ~~Prospectus and reported on by them~~ Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the ~~related~~ published rules and regulations ~~adopted~~ of the Commission thereunder, (iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Preliminary Prospectus or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, Preliminary Prospectus or Prospectus for them to be in conformity with generally accepted accounting principles or any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, Preliminary Prospectus or Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus and except as set forth in or contemplated by the ~~Commission~~Registration Statement, Preliminary Prospectus or Prospectus, there were any adverse changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt or decreases in stockholder’s equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; ~~and~~ and (iiiv) they have ~~performed certain other~~ carried out specified procedures ~~as a result~~ performed for the purpose of ~~which they determined that~~ comparing certain specified financial information ~~of an accounting, financial or statistical nature~~ and percentages (which is limited to ~~accounting,~~ financial ~~or statistical~~ information derived from ~~the~~ general accounting records of the ~~Company~~Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) ~~set forth~~ included or incorporated by reference in the Registration Statement, ~~the Statutory~~ Preliminary Prospectus and ~~the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization”~~ Prospectus with indicated amounts in the ~~Statutory Prospectus and the Prospectus, agrees with the~~ financial statements or accounting records of the ~~Company,~~ Company and (excluding any questions of legal interpretation~~. References~~ ) have found such information and percentages to be in agreement with the ~~Prospectus in this paragraph (e) include any supplement thereto at the date~~ relevant accounting and financial information of the ~~letter~~Company referred to in such letter in the description of the procedures performed by them. (f) Subsequent to the ~~Execution Time or, if earlier, the~~ respective dates as of which information is given in the Registration Statement ~~(exclusive of any amendment thereof), the Statutory Prospectus~~ and the ~~Prospectus (exclusive of any supplement thereto)~~most recent Preliminary Prospectus, there shall not have been ~~(i)~~ any adverse change or decrease specified in the letter ~~or letters~~ dated as of the Closing Date referred to in paragraph (e) of this Section 6 7 which makes it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated by the Pricing Disclosure Package. (g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Bonds or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act (other than downgrades of debt issued by or on behalf of governmental entities and insured by third parties for the benefit of the Company) 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 Bonds or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt issued by or on behalf of governmental entities and insured by third parties for the benefit of the Company). (h) Neither the Company nor any of its subsidiaries (i) shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or action, order or decree of any court, arbitrator or governmental or regulatory authority, otherwise than as set forth or contemplated in the most recent Preliminary Prospectus, and (ii) shall have incurred since the date of this Agreement, any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries taken as a whole, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries taken as a whole or any change, or any development involving a prospective change, in or affecting the ~~earnings~~general affairs, management, business, ~~management~~financial position, ~~properties~~stockholder’s equity, ~~assets, rights, operations, condition (financial or otherwise)~~ results of operations or prospects of the ~~Company, whether or not arising from transactions in the ordinary course of business, except~~ Company and its subsidiaries taken as a whole otherwise than as set forth in or contemplated in the ~~Statutory~~ most recent Preliminary Prospectus and the ~~Prospectus (exclusive of any supplement thereto)~~ Prospectus, the effect of which, in any such case ~~referred to~~ described in clause (i) or (ii) ~~above, is,~~ above is in the ~~sole~~ judgment of the ~~Representatives,~~ Underwriters so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to proceed with the ~~offering~~ offering, sale or the delivery of the ~~Securities as~~ Bonds on the terms and in the manner contemplated by ~~the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus~~ this Agreement and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (gi) ~~Prior~~ No Representative shall have advised the Company that the Registration Statement, Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading. (j) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as the Closing Date, prevent the issuance or sale of the Bonds; 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 Bonds. (k) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished to the Representatives such ~~further~~ other customary information, certificates and documents as ~~the Representatives~~ they may reasonably request. (hl) ~~FINRA~~ The Company and Trustee shall ~~not~~ have ~~raised any objection with respect~~ entered into the supplemental Indenture relating to the ~~fairness or reasonableness of~~ Bonds, and the ~~underwriting or other arrangements of~~ Representatives shall have received counterparts, conformed as executed thereof, and the ~~transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which~~ Bonds shall have been ~~provided to the Representatives. (j) On the Effective Date,~~ duly executed and delivered by the Company ~~shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement~~ and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated authenticated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option SecuritiesTrustee. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as ~~provided in~~ required by this Agreement, or if any of the ~~opinions, negative assurance letters~~ 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~~their counsel, this Agreement and all obligations of the Underwriters hereunder may be ~~canceled~~ 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~~ writing, or by telephone or facsimile transmission confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Public Service Co of Colorado)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten Securities~~ Firm Units and the ~~Option Securities~~Optional Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxxx & Xxxxxx ~~LLP~~L.L.P., counsel for the Company, to have furnished to the ~~Representatives~~ Representative its ~~opinions and negative assurance letter~~opinion, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, in a substantially the form ~~reasonably acceptable~~ as previously agreed to by the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the ~~Securities~~Units, the Registration Statement, the Statutory Prospectus, the 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 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 one of the Co-Chief Executive ~~Officer~~ Officers and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) 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~~Date or settlement date (as applicable); (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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ WithumSmith to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in substantially the form ~~and substance satisfactory~~ as previously agreed to by the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~January 28, ~~2020~~ 2021 (~~date of~~ inception) through ~~July 24~~February 2, ~~2020~~2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the ~~Securities~~ Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The ~~Securities~~ Units shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the Trust Agreement, the Securities ~~Assignment~~ Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Support Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(hh) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxx Xxxxxx, ~~Xxx Xxxx~~Xxxxx 0000, ~~Xxx Xxxx~~ Xxxxxxx, Xxxxx 00000, Attention: ~~Xxxx~~ Xxxxxx X. ~~Xxxxx~~Xxxxxx, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Samples: Underwriting Agreement (Switchback III Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten~~ Securities ~~and the Option Securities, as the case may be,~~ shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution ~~Time,~~ Time and the ~~Closing Date and any Option~~ Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions ~~hereof~~of this Section, to the performance by the Company of its obligations ~~hereunder~~ hereunder, and to the following additional conditions: (a) ~~The Prospectus,~~ (i) Each Preliminary Final Prospectus that supplements the Basic Prospectus and ~~any supplement thereto,~~ the Final Prospectus shall have been filed with the Commission, 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 4(a) hereof; ~~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.~~threatened by the Commission; (b) The ~~Company~~ Representative shall have ~~requested and caused Weil, Gotshal~~ received from Vxxxxx & ~~Xxxxxx~~ Exxxxx LLP, counsel for the Company, ~~to have furnished to the Representatives its opinions and negative assurance letter~~their opinion, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, ~~in a form reasonably acceptable~~ to the ~~Representatives.~~effect set forth in Annex I hereto; (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ the General Counsel to the Company, his opinion, dated the Closing Date and addressed to the Representative, to the effect set forth in Annex II hereto; (d) The Representative shall have received from Milbank, Tweed, Hxxxxx & ~~Xxxx~~ MxXxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Indenture (if applicable), the Registration Statement, the ~~Statutory Prospectus~~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 reasonably require and 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 in their representative capacities by the Chief Executive Officer and ~~the principal financial or accounting officer~~ Chief Financial Officer of the Company, dated the Closing Date, to the effect ~~that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and~~ that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any ~~notice objecting~~ prospectus relating to ~~its use~~ the Securities has been issued and no proceedings for that purpose have ~~been instituted or~~been, to the Company’s knowledge, ~~threatened~~instituted or threatened by the Commission; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Statutory Prospectus and~~ Final Prospectus, as amended or supplemented prior to the ~~Prospectus (exclusive of any supplement thereto)~~Execution Time, there has been no ~~Material Adverse Effect~~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 ~~Statutory Prospectus and~~ Final Prospectus, as amended or supplemented prior to the ~~Prospectus (exclusive of any supplement thereto).~~Execution Time, or as described in such certificate; (ef) ~~The Company shall have requested and caused KPMG to have furnished to the Representatives, at~~ At the Execution Time and at the Closing Date, ~~letters,~~ the Representative shall have received from Ernst & Young LLP a letter or letters dated ~~respectively as of the Execution Time and as of the Closing Date~~such date or dates, in form and substance reasonably satisfactory to the ~~Representatives~~Representative, ~~confirming that they are a registered public accounting firm that is independent~~ together with signed or reproduced copies of such letter or letters for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and certain financial ~~statement schedules included~~ information contained in the Registration Statement, the ~~Statutory Prospectus~~ Final Prospectus, the Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; andany Issuer Free Writing Prospectus; (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement ~~(exclusive of any amendment thereof)~~as amended or supplemented prior to the Execution Time, the ~~Statutory~~ Final Prospectus ~~and~~ as amended or supplemented prior to the ~~Prospectus (exclusive of~~ Execution Time or any ~~supplement thereto)~~Issuer Free Writing Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 5 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), earnings, business or ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus and~~ Final Prospectus, as amended or supplemented prior to the ~~Prospectus (exclusive of any supplement thereto)~~ Execution Time, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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~~ Statement, the Final Prospectus and any Issuer Free Writing Prospectus; (~~exclusive~~ h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any ~~amendment thereof),~~ of the ~~Statutory Prospectus and~~ Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the ~~Prospectus (exclusive~~ Act) or any notice given of any ~~supplement thereto).~~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; and (gi) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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~~Representative, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 to the offices of Milbank, Tweed, Hxxxxx & MxXxxx LLP at ~~the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx~~Oxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx ~~00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein,~~ 00000 on the Closing ~~Date~~Date or such other place as the Representative shall so instruct.

Appears in 1 contract

Samples: Underwriting Agreement (Pioneer Natural Resources Co)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten Securities~~ Firm Units and the ~~Option Securities~~Optional Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxxx & Xxxxxx ~~LLP~~L.L.P. and Xxxxxx and Calder, counsel for the Company, to have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, each in a substantially the form ~~reasonably acceptable~~ as previously agreed to by the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date or settlement date (as applicable) and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the ~~Securities~~Units, the Registration Statement, the Statutory Prospectus, the 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 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 one of the Co-Chief Executive ~~Officer~~ Officers and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date or settlement date (as applicable), to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) 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~~Date or settlement date (as applicable); (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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ WithumSmith to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date or settlement date (as applicable), in substantially the form ~~and substance satisfactory~~ as previously agreed to by the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period ~~from June 29~~October 7, 2020 (~~date of~~ inception) through ~~July 24~~October 8, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing ~~Date~~Date or settlement date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the ~~Securities~~ Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing ~~Date~~Date or settlement date (as applicable), the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The ~~Securities~~ Units shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~NYSE, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the Trust Agreement, [the Securities Assignment Agreement, ]the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing ~~Date~~Date or settlement date (as applicable), the ~~Sponsor~~ Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing ~~Date~~Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~000 Xxxx Xxxxxx, ~~Xxx Xxxx~~Xxxxx 0000, ~~Xxx Xxxx~~ Xxxxxxx, Xxxxx 00000, Attention: ~~Xxxx~~ Xxxxxx X. ~~Xxxxx~~Xxxxxx, unless otherwise indicated herein, on the Closing ~~Date~~Date or settlement date (as applicable).

Appears in 1 contract

Samples: Underwriting Agreement (Switchback II Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and ~~the~~ any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager 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); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) ~~The Company~~ At the Closing Date, the Representatives shall have ~~requested~~ received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP and ~~caused Weil, Gotshal~~ Xxxxx & ~~Xxxxxx~~ Xxxxxxx LLP, counsel for the ~~Company~~Company and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A and Exhibit B hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, 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 ~~have furnished~~ 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 ~~Representatives its opinions~~ extent they deem proper, on certificates of responsible officers of the Company and ~~negative assurance letter, each dated~~ public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing ~~Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives~~Date. (c) The Representatives shall have received from ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus~~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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary Prospectus~~Statement, the Disclosure Package, the Final Prospectus and any ~~amendment~~ supplements or ~~supplement~~ amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no ~~Material Adverse Effect~~material 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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date. (f) The Company shall have requested and caused ~~KPMG~~ 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, ~~confirming that they are a registered public accounting firm that is independent~~ containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the ~~Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited~~ financial statements and certain financial information of the Company ~~for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time~~ contained or ~~Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included~~ incorporated by reference in the Registration Statement, the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Final Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof~~), the Statutory Prospectus~~ ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), earnings, business or ~~prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). (gh) 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. (hi) ~~FINRA shall not have raised any objection with respect~~ Prior to the ~~fairness or reasonableness~~ Closing Date, the shares of Common Stock issuable upon conversion of the ~~underwriting or other arrangements~~ Securities shall have been listed and admitted and authorized for trading on the NYSE, subject only to notice of ~~the transactions contemplated hereby~~issuance. (j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit C hereto from (i) ~~The Securities shall be duly listed subject to notice~~ each officer and director of ~~issuance on~~ the ~~Nasdaq Capital Market~~Company (other than Xxxxx Xxxxxxxxxx), ~~satisfactory evidence~~ (ii) each officer of ~~which shall have been provided~~ the Manager, and (iii) SPT Investment, LLC, in each case addressed to the Representatives. (jk) On At the ~~Effective Date~~Execution Time, the Company shall have ~~delivered~~ furnished to the Representatives ~~executed copies~~ a letter substantially in the form of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: Exhibit D hereto from (i) ~~a certificate signed by~~ the ~~Chief Executive Officer~~ Manager and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing DateXxxxx Xxxxxxxxxx, in ~~form and substance satisfactory~~ each case addressed to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~Ropes~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~Four Times Square, ~~Xxx Xxxx~~New York, ~~Xxx Xxxx 00000~~New York, ~~Attention: Xxxx X. Xxxxx, unless otherwise indicated herein~~10036-6522, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Starwood Property Trust, 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,~~ Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein ~~as of~~ at the Execution ~~Time,~~ Time and the ~~Closing Date and any Option~~ 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & ~~Xxxxxx~~ Xxxxxxxx LLP, special counsel for the Company, to shall have furnished to the Representatives its ~~opinions~~ opinion and ~~negative assurance~~ letter, ~~each~~ dated the Closing Date and addressed to the Representatives, ~~in a form reasonably acceptable~~ substantially to the ~~Representatives~~effect set forth in Exhibits A and B hereto. (cb) The Representatives shall have received from ~~Ropes~~ Xxxxxx Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the ~~Securities~~Notes, the Indenture, the Registration Statement, the ~~Statutory Prospectus~~Disclosure Package, the Prospectus (~~together with any supplement thereto~~as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (dc) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or executive vice president and any of the chief financial officer, the treasurer and the principal ~~financial or~~ accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the ~~Registration Statement each Preliminary~~ Prospectus, ~~the Prospectus and~~ any amendment or supplement ~~thereto,~~ to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing ~~Date~~ 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 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; and (~~iii~~ii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there has been no ~~Material Adverse Effect~~event or occurrence that would reasonably be expected to result in a material adverse effect on the general affairs, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as one enterprise, except as set forth in or contemplated by the Disclosure Package and the Prospectus. (d) On the date hereof, the Representatives shall have requested and the Company shall have caused Deloitte & Touche LLP, to furnish to the Representatives a comfort letter, dated the date hereof, in form and substance reasonably satisfactory to the Representatives, covering the financial information in the ~~Statutory Prospectus~~ Disclosure Package and ~~the Prospectus (exclusive of any supplement thereto)~~other customary information. (e) ~~The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at~~ On the Closing Date, ~~letters~~the Representatives shall have received from Deloitte & Touche LLP, a letter dated ~~respectively as of the Execution Time and as of the Closing Date~~such date, in form and substance reasonably satisfactory to the Representatives, ~~confirming~~ to the effect that they ~~are a registered public accounting firm~~ reaffirm the statements made in the letter furnished by them pursuant to subsection (d) of this Section 5, except that ~~is independent with respect~~ (i) it shall cover the financial information in the Prospectus and any amendment or supplement thereto and (ii) the specified date referred to therein for the carrying out of procedures shall be no more than three Business Days prior to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as ~~applicable, and stating in effect that: (i) in their opinion~~ the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the lettercase may be. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the ~~Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in ~~paragraph~~ paragraphs (d) and (e) of this Section 6 5; or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings~~financial condition, ~~business, management, properties, assets, rights,~~ results of operations, ~~condition (financial~~ business operations, assets or ~~otherwise) or prospects~~ liabilities of the ~~Company~~Company and its subsidiaries, ~~whether or not arising from transactions in the ordinary course of business~~taken as a whole, except as set forth in or contemplated in by the ~~Statutory Prospectus~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~ Prospectus, the effect of ~~which, in any case referred to in clause (i) or (ii) above,~~ which is, in the ~~sole~~ reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to ~~proceed with~~ market the ~~offering or delivery of the Securities~~ Notes as contemplated by the ~~Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus~~ Disclosure Package and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (g) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Representatives shall have received counterparts, conformed as executed, thereof. (h) At the Closing Date, the Notes shall be eligible for clearance and settlement through DTC. (i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities 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) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 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~~ 5 will be delivered at the office of ~~Ropes~~ Xxxxxx Xxxxxx & ~~Xxxx~~ Xxxxxxx LLP, ~~counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx~~00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ~~00000, Attention: Xxxx X. Xxxxx, unless otherwise indicated herein,~~ on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (RR Donnelley & Sons Co)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the ~~Underwritten Securities and the Option Securities, as the case may be,~~ Purchased Bonds shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the ~~Execution Time,~~ date hereof and the ~~Closing Date and any Option~~ 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no~~ No stop order suspending the effectiveness of the Registration Statement ~~or any notice objecting to its use~~ shall ~~have been issued~~ be in effect and no proceedings for that purpose shall ~~have been instituted~~ then be pending before, or ~~threatened~~threatened by, the Commission. (b) The Company shall have ~~requested and caused Weil, Gotshal~~ furnished to the Representatives the opinion of Sidley Austin Brown & ~~Xxxxxx LLP~~Wood, counsel for the Company, ~~to have furnished to the Representatives its opinions and negative assurance letter, each~~ dated the Closing Date ~~and addressed~~ axx xxxxxxxxx to ~~the~~ xxx Representatives, in a form ~~reasonably acceptable~~ and substance satisfactory to each of the ~~Representatives~~Representatives and their counsel. (c) The Representatives shall have received from ~~Ropes~~ Winston & ~~Xxxx LLP~~Strawn, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated ~~the Closing Date and addressed to the Representatives~~xxx Xxosing Date, with respect to the issuance and sale of the ~~Securities~~Purchased Bonds, the Mortgage, the Registration Statement, the ~~Statutory Prospectus, the~~ 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. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer and the principal financial~~ Treasurer or ~~accounting officer~~ Assistant Treasurer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registration Statement each Preliminary~~ Prospectus, ~~the Prospectus and~~ any amendment or supplement ~~thereto,~~ to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing ~~Date~~ 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; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus and the~~ Prospectus (exclusive of any amendment or supplement thereto), there has been no ~~Material Adverse Effect~~material adverse change in the financial condition, 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 Statutory Prospectus and~~ by the Prospectus (exclusive of any amendment or supplement thereto); and (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to his or her knowledge, threatened by the Commission. (e) ~~The~~ On the date hereof and on the Closing Date, the Company shall have requested and caused ~~KPMG~~ PricewaterhouseCoopers LLP to ~~have furnished~~ furnish to the ~~Representatives, at the Execution Time and at the Closing Date,~~ 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, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the ~~Execution Time or~~date of this Agreement, or if earlier, the respective dates as of which information is given in the Registration Statement ~~(exclusive of any amendment thereof), the Statutory Prospectus~~ and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there shall not have been (i) any change or decrease specified in the letter ~~or letters~~ referred to in paragraph (e) of this Section 6 5 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings~~financial condition, ~~business, management, properties, assets, rights, operations, condition (financial~~ business or ~~otherwise) or prospects~~ properties of the ~~Company~~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 ~~Statutory Prospectus and the~~ Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the public offering or delivery of the ~~Securities~~ Series 99 Bonds or the Series 100 Bonds, respectively, as contemplated by ~~the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and~~ the Prospectus (exclusive of any amendment or supplement thereto). (g) On the Closing Date, (i) the Series 99 Bonds and the Series 100 Bonds shall be rated ______ and ______, respectively, by Moody's Investors Service, Inc. and ______ and ______, respectively, bx Xxxxxard & Poor's Rating Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Purchased Bonds have such ratings, and (ii) subsequent to the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Purchased Bonds or any of the Company's first mortgage bonds or commercial paper by any "nationally recognized statistical rating agency", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Purchased Bonds or any of the Company's other debt securities. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (k) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters and~~ opinions or 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~~their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section ~~6 shall~~ 5 will be delivered at the office of ~~Ropes & Xxxx LLP,~~ counsel for the ~~Underwriters~~Company, at ~~0000 Xxxxxx xx xxx Xxxxxxxx~~Sidley Austin Brown & Wood, ~~Xxx Xxxx~~10 South Dearborn Street, ~~Xxx Xxxx~~ Suite 5500, Chicago, Ilxxxxxx 00000, ~~Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date~~ox xxe Xxxxxxx Xxxx.

Appears in 1 contract

Samples: Underwriting Agreement (Commonwealth Edison Co)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten Securities~~ Firm Units and the Option ~~Securities~~Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership Parties contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Company~~ Partnership Parties made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ Partnership Parties of ~~its~~ their obligations hereunder and to the following additional conditions: (a) The ~~Prospectus,~~ Prospectus and any supplement ~~thereto,~~ thereto have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the 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. (b) The ~~Company~~ Partnership shall have requested and caused ~~Weil, Gotshal~~ Fulbright & ~~Xxxxxx~~ Xxxxxxxx LLP, Xxxxxxxx, Xxxxxx & Finger, special counsel for the ~~Company~~Partnership, and Xxxxxxx X. Xxxxxxx, general counsel to the Partnership, to have furnished to the ~~Representatives its opinions and negative assurance letter~~Representative their respective legal opinions, ~~each~~ dated the Closing Date and any settlement date pursuant to Section 3 hereof, and addressed to the ~~Representatives~~Representative, in a form and substance reasonably ~~acceptable~~ satisfactory to the ~~Representatives~~Representative, substantially in the form set forth on Exhibits B-1, B-2 and B-3. 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 Delaware, the State of New York, the State of Texas or the federal laws of the United States, the DGCL, the Delaware LP Act or the Delaware LLC Act, 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 General Partner and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) The ~~Representatives~~ Partnership shall have requested and caused Fulbright & Xxxxxxxx LLP to have furnished to the Representative their negative assurance letters, dated the Closing Date and any settlement date pursuant to Section 3 hereof, and addressed to the Representative, in form and substance reasonably satisfactory to the Representative. (d) The Representative shall have received from ~~Ropes~~ Xxxxxx & ~~Xxxx LLP~~Xxxxxx L.L.P., counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and any settlement date pursuant to Section 3 hereof, and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the ~~Securities~~Units, the Registration Statement, the ~~Statutory Prospectus~~Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ Representative may reasonably require, and the ~~Company~~ Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (de) The ~~Company~~ Partnership shall have furnished to the ~~Representatives a certificate~~ Representative certificates of the ~~Company, signed by the Chief Executive Officer and the principal financial or accounting officer~~ officers of the ~~Company~~General Partner, dated the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the effect that the signers of each such certificate have carefully examined the Registration ~~Statement each Preliminary~~ Statement, the Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each electronic roadshow used in connection with the offering of the Units, if any, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ Partnership Parties in this Agreement are true and correct on and as of the Closing Date and any settlement date pursuant to Section 3 hereof, with the same effect as if made on the Closing Date and any settlement date pursuant to Section 3 hereof, and the ~~Company has~~ Partnership Parties 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~~date hereof; (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~~knowledge of the Partnership Parties, threatened; and (iii) since the date of the most recent financial statements included in the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse ~~Effect,~~ Effect except as ~~set forth in or contemplated~~ described in the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any supplement thereto). (ef) The ~~Company~~ Representative shall have ~~requested~~ received from Ernst & Young LLP customary comfort letters dated the date of this Agreement, the Closing Date and ~~caused KPMG to have furnished~~ any settlement date, and addressed to the ~~Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as~~ Representative (with executed copies for each of the ~~Execution Time and as of~~ Underwriters) in the ~~Closing Date, in form and substance~~ forms satisfactory to the ~~Representatives~~Representative, ~~confirming that they are a registered public accounting firm that is independent with respect to~~ which letters shall cover, without limitation, the ~~Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted~~ various financial disclosures included or incorporated by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included reference in the Registration Statement, the ~~Statutory Prospectus and~~ Disclosure Package, the Prospectus and ~~reported on by them comply as~~ each Permitted Free Writing Prospectus. (g) The Representative shall have received from PricewaterhouseCoopers LLP customary comfort letters dated the date of this Agreement, the Closing Date and any settlement date, and addressed to ~~form in all material respects~~ the Representative (with ~~the applicable accounting requirements~~ executed copies for each of the ~~Act~~ Underwriters) in the forms satisfactory to the Representative, which letters shall cover, without limitation, the statements of revenues 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 direct operating expenses of the ~~Company) set forth~~ Northwest Products System related to certain pipeline and terminal operations of Chevron Pipe Line included or incorporated by reference in the Registration Statement, the ~~Statutory~~ Disclosure Package, the Prospectus and ~~the~~ each Permitted Free Writing Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in ~~this paragraph~~ paragraphs (ef), and (g) above include any supplement thereto at the date of the letter. (fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any ~~amendment~~ thereof~~), the Statutory Prospectus~~ ) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in ~~paragraph~~ paragraphs (ef) and (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), prospects, earnings, business or ~~prospects~~ properties of the ~~Company~~Partnership Entities 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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)~~ the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the ~~Securities~~ Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the ~~Statutory Prospectus~~ Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (gi) ~~Prior~~ Subsequent to the ~~Closing Date~~Execution Time, there shall not have been any decrease in the rating of any of the Partnership Entities’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (j) At the Execution Time, the ~~Company~~ Partnership shall have furnished to the ~~Representatives such further information~~Representative a letter substantially in the form of Exhibit A hereto from Tesoro, ~~certificates~~ TRMC, Tesoro Alaska and ~~documents as~~ each officer of and director of the ~~Representatives may reasonably request. (h) FINRA shall not have raised any objection with respect~~ General Partner and addressed to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementRepresentative. (k) ~~At least one Business Day prior to the Closing Date, the Sponsor~~ The Representative shall have ~~caused~~ received from the ~~purchase price for~~ Partnership Parties such additional documents and certificates as the ~~Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing~~ Representative or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably ~~request with respect to the issuance of such Option Securities~~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, negative assurance letters~~ 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~~Xxxxxx & Xxxxxx L.L.P., this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 Ropes & Xxxx LLP~~of, counsel for the Underwriters, at Xxxxxx & Xxxxxx L.L.P., 0000 Xxxxxx ~~xx xxx Xxxxxxxx~~Xx., ~~Xxx Xxxx~~Suite 2500, ~~Xxx Xxxx 00000~~Houston, ~~Attention: Xxxx X. Xxxxx, unless otherwise indicated herein~~Texas 77002, on the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof.

Appears in 1 contract

Samples: Underwriting Agreement (Tesoro Logistics Lp)

Conditions to the Obligations of the Underwriters. The obligations of -------------------------------------------------- the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the ~~Company~~ Sellers contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Company~~ Sellers made in any certificates pursuant to the provisions hereof, to the performance by the ~~Company~~ each of ~~its~~ the Sellers of their respective obligations hereunder and to the following additional conditions: (a) ~~The~~ If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any ~~supplement thereto~~such supplement, ~~have been~~ will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement ~~or any notice objecting to its use~~ shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have ~~requested~~ furnished to the Representatives the opinion of Venable, Baejter and ~~caused Weil~~Xxxxxx, ~~Gotshal & Xxxxxx~~ LLP, counsel for the ~~Company~~Company (satisfactory to you and your counsel), ~~to have furnished to the Representatives its opinions and negative assurance letter, each~~ dated the Closing Date and addressed to the Representatives, in a form ~~reasonably acceptable~~ of which is attached hereto as Exhibit 6(b), which opinion shall be rendered to the ~~Representatives~~Underwriters at the request of the Company and shall so state therein. (c) The Company shall have furnished to the Representatives the opinion of Xxxxx & Xxxxx, special intellectual property counsel for the Company (satisfactory to you and your counsel), dated the Closing Date and addressed to the Representatives, a form of which is attached hereto as Exhibit 6(c), which opinion shall be rendered to the Underwriters at the request of the Company and shall so state therein. The Company shall have received the consent of Xxxxx & Xxxxx to be included in the Registration Statement as Exhibit 23.3. (d) The Representatives shall have received from ~~Ropes~~ Xxxxxx Xxxxxx & ~~Xxxx LLP~~Zavis, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ~~Statutory Prospectus, the~~ Prospectus (together with any supplement thereto) and other related matters as the ~~Representatives~~ Represen tatives 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. The opinion or opinions of such counsel shall be rendered to the Underwriters at the request of the Company and shall so state therein. (de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement each Preliminary~~ Statement, the Prospectus, any supplements to the Prospectus ~~and any amendment or supplement thereto,~~ and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the ~~agreements~~ provisions 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 's knowledge, threatened; and (iii) since the date of the most recent financial statements included in ~~the Statutory Prospectus and~~ the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the ~~Statutory Prospectus and the~~ Prospectus (exclusive of any supplement thereto)) and other than operating losses consistent with the Company's business plan as described in the Prospectus. (ef) ~~The Company shall have requested and caused KPMG to have furnished to the Representatives, at~~ At the Execution Time and at the Closing Date, Ernst & Young, LLP shall have furnished to the Representatives and the Board of Directors of the Company letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are ~~a registered public accounting firm that is~~ independent ~~with respect to the Company~~ accountants within the meaning of the Act and the ~~Exchange Act and the~~ applicable published rules and regulations ~~adopted by the Commission~~ thereunder and that they have performed a review of the ~~audited~~ unaudited interim financial ~~statements~~ information of the Company for the three-month period ~~from June 29~~ended March 31, ~~2020 (date of inception) through July 24~~1999, ~~2020~~and as at March 31, ~~provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date~~1999, ~~as applicable~~in accordance with Statement on Auditing Standards No. 71, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules and pro forma and pro forma as adjusted financial statements included in the Registration ~~Statement, the Statutory Prospectus~~ Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related published rules and regulations ~~adopted by the Commission; and~~with respect to registration statements on Form S-1; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; their limited review, in accordance with standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the three-month period ended March 31, 1999, and as at March 31, 1999; 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 the compensation and audit committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to December 31, 1998, nothing came to their attention which caused them to believe that: (A) any unaudited financial statements included in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the published rules and regulations of the Commission with respect to registration statements on Form S-1; or said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus; (B) with respect to the period subsequent to December 31, 1998, 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 or capital stock of the Company, or decreases in the stockholders' equity of the Company as compared with the amounts shown on the December 31, 1998 consolidated balance sheet included in the Registration Statement and the Prospectus, or for the period from January 1, 1999 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in net sales, gross profit or loss from operations, or net loss in total or per share amounts of net loss of the Company, except in all instances for changes or decreases set forth in such letter; (C) the information included in the Registration Statement and 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; (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) set forth in the Registration ~~Statement, the Statutory Prospectus~~ Statement and the Prospectus, including the information set forth under the captions ~~“Dilution”~~ "Selected Financial Data" and ~~“Capitalization”~~ "Summary Financial Data" in ~~the Statutory Prospectus and~~ the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and (iv) on the basis of a reading of the unaudited pro forma and pro forma as adjusted financial statements included in the Registration Statement and the Prospectus; carrying out certain specified procedures; inquiries of certain officials of the Company who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma and pro forma as adjusted adjustments to the historical amounts in the pro forma and pro forma as adjusted financial statements, nothing came to their attention which caused them to believe that the pro forma and pro forma as adjusted financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma and pro forma as adjusted adjustments have not been properly applied to the historical amounts in the compilation of such statements. References to the Prospectus in this paragraph (ef) include any supplement thereto at the date of the letter. (fg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof~~), the Statutory Prospectus~~ ) and the Prospectus (exclusive of any supplement thereto), there shall not have been (other than operating losses consistent with the Company's business plan as described in the Prospectus) (i) any change or decrease specified in the letter or letters referred to in paragraph (ef) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in ~~the Statutory Prospectus and~~ the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof~~), the Statutory Prospectus~~ ) and the Prospectus (exclusive of any supplement thereto). (gh) The Securities shall have been approved for quotation, admitted and authorized for trading, subject to official notice of issuance on the Nasdaq National Market; listed and admitted and authorized for trading on the Nasdaq National Market and satisfactory evidence of such actions shall have been provided to the Representatives. (i) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the stockholders listed on Schedule A-1 addressed to the Representatives. (j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request~~. (h) FINRA shall not have raised any objection with respect~~ , including, among other things and without limitation, a duly filed, authorized and approved amendment to its Certificate of Incorporation providing for an increase in the ~~fairness or reasonableness~~ authorized capital of the ~~underwriting or other arrangements~~ Company from 15,584,415 authorized shares of ~~the transactions contemplated hereby. (i) The Securities shall be duly listed subject~~ Common Stock to ~~notice~~ a total of ~~issuance~~ 100,000,000 shares of Common Stock authorized as a result of a 2.33-to-one stock split effected on ~~the Nasdaq Capital Market~~June 14, satisfactory evidence of which shall have been provided to the Representatives. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement1999. (k) ~~At least one Business Day prior~~ The representations and warranties of the Selling Stockholder contained in Section 1(b) of this Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date and you shall have received a certificate to such effect, dated the Closing Date, from the ~~Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account~~Selling Stockholder. (l) ~~No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(g) hereof~~ The Selling Stockholder shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery furnished to the Representatives ~~on the applicable Option Closing Date of the following:~~ an opinion (~~i) a certificate signed by the Chief Executive Officer~~ satisfactory to you and ~~the principal financial or accounting officer of the Company~~your counsel), dated the ~~Option Closing Date, confirming that the certificate delivered on the~~ Closing Date ~~pursuant~~ and addressed to ~~Section 6(d) hereof remains true~~ the Representatives, of Xxxx, Weiss, Rifkind, Xxxxxxx and ~~correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP~~Xxxxxxxx, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing DateSelling Stockholder, in form and substance satisfactory to counsel for the Representatives, ~~from KPMG substantially in the same~~ a form ~~and substance~~ which is attached hereto as ~~the letter furnished~~ Exhibit 6(l), which opinion shall be rendered to the Underwriters ~~pursuant to Section 6(e~~at the request of the Selling Stockholder and shall so state therein. (m) ~~hereof; provided that~~ Neither of the ~~cutoff date~~ Sellers shall ~~not be more than two business days~~ have failed on or prior to ~~such Option~~ the Closing Date to perform or comply with any of the provisions herein contained and required to be performed or complied with by the Company or the Selling Stockholder, as the case may be, on or prior to the Closing Date~~; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities~~. 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, negative assurance letters~~ 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 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~~ offices of ~~Ropes~~ Xxxxxx Xxxxxx & ~~Xxxx LLP~~Zavis, counsel for the Underwriters, at 0000 Xxxxxx ~~xx xxx Xxxxxxxx~~Xxxxxxxxx Street, ~~Xxx Xxxx~~N.W., ~~Xxx Xxxx 00000~~Suite 700 East, ~~Attention: Xxxx X. Xxxxx~~Washington, ~~unless otherwise indicated herein~~D.C. 20007, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Musicmaker Com Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal~~ Xxxxx Xxxx & ~~Xxxxxx~~ Xxxxxxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and~~ (including negative assurance ~~letter, each~~ statements) dated the Closing Date and addressed to the ~~Representatives,~~ Representative in a form ~~reasonably~~ and substance acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Company shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in form and substance acceptable to the Representative. (d) The Representative shall have received from ~~Ropes~~ Xxxx, Weiss, Rifkind, Xxxxxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions and negative assurance letter, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer ~~and the principal financial~~ or ~~accounting officer~~ Chief Financial Officer of the Company, dated the Closing Date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that: (i) the representations and warranties of the Company 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; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (ef) The Company shall have furnished to the Representative a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate. (g) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from ~~June 29~~December 1, 2020 (~~date of~~ inception) through ~~July 24~~December 31, ~~2020~~2021, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (eg) include any supplement thereto at the date of the letter. (fh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (eg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the ~~earnings, business, management, properties, assets, rights, operations,~~ condition (financial or otherwise) ), earnings, business or ~~prospects~~ properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (~~g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (h~~i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (ij) The Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (jk) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the ~~Insider Letters and~~ Founder’s Purchase Agreement, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement and the Insider Letter. (kl) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused certain proceeds from the ~~purchase price for~~ sale of the Private Placement Warrants to be deposited into the Trust Account. (lm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Xxxx, Weiss, Rifkind, Xxxxxxx & ~~Xxxx~~ Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, ~~Attention: Xxxx X. Xxxxx,~~ unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Guggenheim Special Purpose Acquisition Corp. I)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option~~ Additional Closing ~~Date~~Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened. (b) The Company shall have requested and caused ~~Weil, Gotshal & Xxxxxx~~ Fox Rothschild LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its opinions ~~and negative assurance letter, each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ Ellenoff Xxxxxxxx & ~~Xxxx~~ Schole LLP, counsel for the Underwriters, such opinion or ~~opinions and negative assurance letter~~opinions, ~~each~~ dated the Closing Date and addressed to the ~~Representatives~~Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 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 Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company 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 knowledge of the Company~~’s knowledge~~, threatened; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the ~~Representatives~~Representative, confirming that ~~they are~~ it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that ~~they have~~ it has performed a review of the audited financial statements of the Company for the period from ~~June 29~~April 12, ~~2020~~ 2017 (date of inception) through ~~July 24~~May 15, ~~2020~~2017, provided that the cutoff date shall not be more than two ~~business days~~ Business Days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~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 Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) 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. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Securities shall be duly listed subject to notice of issuance on ~~the Nasdaq~~ The NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider ~~Letters and~~ Letter, the Registration Rights Agreement and the Administrative Services Agreement. (k) At least one Business Day prior to the ~~Closing~~ Effective Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. 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, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 ~~Ropes~~ Ellenoff Xxxxxxxx & ~~Xxxx~~ Schole LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ~~Xxxx X. Xxxxx~~Xxxxxx Xxxxxxxxx, unless otherwise indicated herein, on the Closing Date.

Appears in 1 contract

Samples: Underwriting Agreement (Gordon Pointe Acqusition Corp.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the ~~Underwritten~~ Base Securities and the ~~Option~~ Over-Allotment Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any ~~Option Closing Date~~settlement date pursuant to Section 4 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ~~Weil~~Xxxx, ~~Gotshal~~ Weiss, Rifkind, Xxxxxxx & ~~Xxxxxx~~ Xxxxxxxx LLP, counsel for the Company, to have furnished to the ~~Representatives~~ Representative its ~~opinions~~ opinion and ~~negative assurance letter, each~~ 10b-5 statement dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, in a form reasonably acceptable to the ~~Representatives~~Representative. (c) The ~~Representatives~~ Representative shall have received from ~~Ropes~~ White & ~~Xxxx~~ Case LLP, counsel for the Underwriters, ~~such~~ its opinion ~~or opinions~~ and ~~negative assurance letter~~10b-5 statement, ~~each~~ dated the Closing Date and any settlement date, as applicable, and addressed to the ~~Representatives~~Representative, ~~with respect~~ in a form reasonably acceptable to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the 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 mattersRepresentative. (d) The Company shall have furnished to the ~~Representatives~~ Representative a certificate of the Company, signed by ~~the~~ its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing ~~Date~~Date and any settlement date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration ~~Statement~~ Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of ~~the Closing Date~~ such date with the same effect as if made on ~~the Closing Date~~ such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; (iiiii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (~~iii~~iv) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused ~~KPMG~~ Xxxxxx to have furnished to the ~~Representatives~~Representative, at the Execution Time and at the Closing ~~Date~~Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing ~~Date~~Date and any settlement date, as applicable, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements of the Company for the period from June 29, 2020 (date of inception) through July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letterRepresentative. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ~~Representatives~~Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offering Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (g) Prior to the Closing Date, and any settlement date, as applicable, the Company shall have furnished to the ~~Representatives~~ Representative such further information, certificates and documents as the ~~Representatives~~ Representative may reasonably request. (h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (i) The Offering Securities shall be duly listed subject to notice of issuance on the ~~Nasdaq Capital Market~~New York Stock Exchange, satisfactory evidence of which shall have been provided to the ~~Representatives~~Representative. (j) On the Effective Date, the Company shall have delivered to the ~~Representatives~~ Representative executed copies of the ~~Securities Assignment~~ Trust Agreement, the Public Warrant Agreement, the Private Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription ~~Agreement~~ Agreement, the Insider Letter, the Anchor Securities Purchase Agreements and the ~~Administrative Services~~ Registration Rights Agreement. ~~On or prior to~~ By the Closing Date, the Company ~~will~~ shall have delivered to the Representative an executed copy of the Administrative Services Agreement. With regard to the Insider Letter, if any additional persons shall become executive officers, directors or advisors of the Company prior to the end of the 180-day restricted period referred to in Section 6(h), the Company shall cause each such person, prior to or contemporaneously with their appointment or election as an executive officer, director and director nominee to execute and deliver to the ~~Representatives executed copies of the Trust Agreement, the Warrant Agreement,~~ Representative the Insider ~~Letters and the Registration Rights Agreement~~Letter. (k) At The Sponsor (at least one Business Day prior to the ~~Closing~~ Effective Date~~, the Sponsor~~ ) shall have caused such portion of the purchase price for the Private Placement Warrants to be deposited into the Trust Account so that together with the net proceeds for the Base Securities (including the Deferred Discount), or with respect to the Over-Allotment Securities, the net proceeds from the Over-Allotment Securities (including the Deferred Discount), the Trust Account would equal 101% of the product of the number of Units sold and the public offering price per Unit as set forth on the cover of the Prospectus. Notwithstanding the foregoing, in no event will the Company take any action that would result in the Company receiving proceeds from the sale of the Private Placement Warrants in excess of the sum of: (i) the amount required to satisfy the obligation in the immediately preceding sentence; (ii) the amount of the discount from the public offering price represented by the purchase price set forth in Schedule II of this Agreement and (iii) the amount of money to be held by the Company outside of the Trust Account, as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus. (l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the ~~Representatives~~ Representative pursuant to Section ~~5(g~~6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following: (i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 6(d) hereof remains true and correct as of such Option Closing Date; (ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof; (iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof; (iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from KPMG substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and (v) such further information, certificates and documents as Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the ~~opinions, negative assurance letters~~ 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 canceled at, or at any time prior to, the Closing Date by the ~~Representatives~~Representative. 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 7 and, if applicable, the last sentence of Section 4(d), shall be delivered at the office of ~~Ropes~~ White & ~~Xxxx~~ Case LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx ~~Xxxx~~ Xxxx, 00000~~, Attention: Xxxx X. Xxxxx~~, unless otherwise indicated herein, on the Closing ~~Date~~Date or the applicable settlement date, as applicable.

Appears in 1 contract

Samples: Underwriting Agreement (Trajectory Alpha Acquisition Corp.)

Common use of Conditions to the Obligations of the Underwriters Clause in Contracts