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 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 Xxxxxxxxx Xxxxxxx LLP, 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 A hereto. (c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the 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 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 Xxxxxxxxx to have furnished to the 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 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 October 24, 2013 (inception) to November 20, 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; (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 (f) include any supplement thereto at the date of the letter. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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). (h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. (i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative. (k) On the Effective Date, the Company shall have delivered to the 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. (l) 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 funded into the Trust Account. (n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Boulevard Acquisition Corp.), Underwriting Agreement (Boulevard 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 settlement date pursuant to Section 3 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 Xxxxxxxxx Xxxxxxx Kxxxxxxx & Exxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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 DateDate 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 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 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 DateDate 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 (i) that the Amended and Restated Certificate of Incorporation and the Bylaws 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 Xxxxxxxxx WithumSmith to have furnished to the RepresentativeRepresentatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the RepresentativeRepresentatives, 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 October 24Registration Statement, 2013 (inception) Statutory Prospectus and Prospectus, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date or settlement date, 2013as 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 (f(f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f(f) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(h) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativeRepresentatives.
(k) On the Effective Closing Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Insider Letter, the Registration and Stockholder Rights Agreement and each of the Insider LettersAdministrative Services Agreement.
(l) 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 DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be funded deposited into the Trust Account.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) On or before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Dxxxx Xxxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Samples: Underwriting Agreement (Star Peak Corp II), Underwriting Agreement (Star Peak 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 settlement date pursuant to Section 3 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 Xxxxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions (including negative assurance statements) dated the Closing Date and addressed to the Representative in form and substance 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 Representative in form and substance acceptable to the form attached as Exhibit A heretoRepresentative.
(cd) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, dated the Closing Date and addressed to the 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 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 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 electronic road show used in connection with the offering of the SecuritiesOffering, 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 Representative 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 Charter is true and complete, have has not been modified and are 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.
(fg) The Company shall have requested and caused Xxxxxxxxx Xxxxxx to have furnished to the 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 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 October 24from December 18, 2013 2019 (inception) through December 31, 2020, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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 (f(g) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f(g) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), 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) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters.
(l) 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 (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 funded deposited into the Trust Account.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Sustainable Opportunities Acquisition Corp.), Underwriting Agreement (Sustainable Opportunities 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 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); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx Coie LLP, counsel for the Company, to have furnished to the Representative its opinions their opinion, dated the Closing Date and addressed to the Representative Representative, in substantially the form attached hereto as Exhibit A hereto.C.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Fenwick & Xxxx West LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Executive Officer principal 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 ProspectusStatement, the Disclosure Package, 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 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 Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The principal financial officer of the Company shall have furnished to the Representatives a certificate signed by Representative, at the Secretary or Assistant Secretary of the Company, dated Execution Time and at the Closing Date, certifying (i) that certificates, dated respectively as of the Amended Execution Time and Restated Certificate as of Incorporation the Closing Date, in form and substance satisfactory to the Representative, containing statements and information with respect to certain information contained in the Disclosure Package 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 certificateProspectus.
(f) The Company shall have requested and caused Xxxxxxxxx Ernst & Young LLP to have furnished to the 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 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 October 24, 2013 (inception) to November 20, 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;
(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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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 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 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to At the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective DateExecution Time, the Company shall have delivered furnished to the 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.
(l) 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 A hereto from each officer and director of the Company and all holders of Company equity securities addressed to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedRepresentative. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx Fenwick & Xxxx West LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx0000 0xx Xxxxxx, Xxx Xxxx00xx Xxxxx, Xxx XxxxXxxxxxx, Xxxxxxxxxx 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Zillow Inc), Underwriting Agreement (Zillow 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 each 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 Xxxxxxxxx Xxxxxxx LLPLedgewood PC, counsel for the Company, to have furnished to the Representative Representatives its opinions and negative assurance letter dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representative Representatives in form and substance acceptable to the form attached as Exhibit A heretoRepresentatives.
(cd) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Ellenoff Xxxxxxxx & Xxxx Schole LLP, counsel for the Underwriters, such opinion or opinionsits opinions and negative assurance letter, dated the Closing Date and addressed to the 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 Representative may reasonably requireRepresentatives, 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 Representative Representatives 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 electronic road show used in connection with the offering of the SecuritiesOffering, 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 Certificate of Incorporation and the Bylaws of the Company are Charter is true and complete, have has not been modified and are 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 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.
(fg) The Company shall have requested and caused Xxxxxxxxx Withum to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 thereunder, and that they have reporting on the procedures performed a review by them in respect of the audited financial statements of the Company for the period October 24, 2013 (inception) to November 20, 2013, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included information 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) 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 (fg) include any supplement thereto at the date of the applicable letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativeRepresentatives.
(k) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Registration Rights Agreement, the Warrant Units Subscription Agreement, the Escrow Agreement and each of the Insider LettersLetter and the Services Agreement.
(l) 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 (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the purchase price for sale of the Private Placement Warrants Units to be funded deposited into the Trust Account.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Ellenoff Xxxxxxxx & Xxxx Schole LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx1345 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxxxxx Xxxxxxx Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (FTAC Olympus Acquisition Corp.), Underwriting Agreement (FTAC Olympus 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, hereunder 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 settlement date pursuant to Section 3 hereofDate, 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 If filing the Prospectus, and or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Act or the Securities Act Regulations, the Company shall have been filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required by (without reliance on Rule 424(b424(b)(8) or 164(b) under the Act); and the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof, any Rule 462 Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted initiated or threatened; and any request of the Commission or the Underwriters for additional information (to be included in the Registration Statement, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Representative shall have received confirmation from Axxxxx Xxxxxxxxxx PLLC that there are no claims to which its representation has been sought and that are outstanding in respect of the Company.
(c) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLPAxxxxx Xxxxxxxxxx PLLC, securities counsel for the Company, to have furnished to the Representative its opinions their written opinion and Rule 10b-5 negative assurance letter, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representative in the form attached as Exhibit A heretoand its counsel.
(cd) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx the Rule 10b-5 negative assurance letter of Rxxxxxxx Bxxx Lxxxxxxx Gxxxxx Gxxxxxxx & Xxxx LLPGxxxx PC, counsel for the Underwriters, such opinion or opinions’ counsel, dated the Closing Date Date, and addressed to the 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 such matters as the Representative Underwriters may reasonably require, and the Company shall have furnished to such counsel Rxxxxxxx Brog Leinwand Gxxxxx Gxxxxxxx & Gxxxx PC such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Representative shall have received the opinion of Fish & Rxxxxxxxxx P.C., special intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representative and its counsel.
(f) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer Chief Financial Officer of the CompanyCompany or any other officers of the Company acceptable to the Representative in its discretion, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Pricing Disclosure Package and the Prospectus and any amendment supplements or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, amendments 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 or other order (A) suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof or any amendment thereof, or (B) suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued issued, and no proceedings proceeding for that purpose have has been instituted or, to the Company’s their knowledge, threatened; andis contemplated by the Commission or any state or regulatory body;
(iii) since the date of the most recent financial statements included in the Statutory Prospectus Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in Change; and
(iv) the Statutory Prospectus Company has complied with the terms and conditions of this Agreement on its part to be complied with up to the Prospectus (exclusive time of any supplement thereto)closing on the Closing Date.
(eg) The Company Representative shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary received on and as of the Company, dated Closing Date satisfactory evidence of the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and the Bylaws good standing of the Company are true and complete, have not been modified and are its Subsidiaries in full force and effect, (ii) that writing from the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies applicable Secretary of all correspondence between the Company or State of its counsel and the Commission, and (iv) as to the incumbency jurisdiction of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateorganization.
(fh) The Company shall have requested and caused Xxxxxxxxx the Auditors to have furnished to the Representative, at the Execution Time and at the Closing Date, lettersa letter, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that they are a each is an independent registered public accounting firm that is independent with respect to the Company within the meaning of the Securities Act and the Exchange Act and covering, without limitation, the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the Company’s audited financial statements as of the Company and for the period October 24year ended June 30, 2013 (inception) to November 20, 20132017, and stating in effect that:
(i) in their opinion the Company’s audited financial statements as of and the year ended June 30, 2016, and the various financial statement schedules included disclosures related thereto contained in the Registration Statement, the Statutory Preliminary Prospectus, the Prospectus and the Prospectus Issuer Free Writing Prospectuses, if any.
(i) The Company shall have requested and reported on by them comply caused the Auditors to have furnished to the Representative, at the Closing Date, a letter, dated as to form in all material respects with the applicable accounting requirements of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the related rules Exchange Act and regulations adopted by covering, without limitation, the Commission;
(ii) they have performed financial statements and certain other specified procedures as a result of which they determined that certain financial 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 contained in the Registration Statement, the Statutory Preliminary Prospectus, the Prospectus and the ProspectusIssuer Free Writing Prospectuses, 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 (f) include any supplement thereto at the date of the letterif any.
(gj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been (iA) any change or decrease specified in the letter or letters referred to in paragraph (fh) of this Section 6 4 or (iiB) any changeMaterial Adverse Change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (iA) or (iiB) above, is, in the sole judgment of the 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 Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(hk) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative Underwriters may reasonably request.
(im) FINRA The Company shall not have raised any objection filed a Listing of Additional Shares form with respect to NYSE: American covering the fairness or reasonableness of Shares and the underwriting or other arrangements of the transactions contemplated herebyUnderwriter Shares.
(jn) The Securities shall be duly listed subject to notice of issuance on At the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective DateExecution Time, the Company shall have delivered furnished to the Representative Lock-Up Agreements 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedLock-Up Parties. If any of the conditions specified in this Section 6 4 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 4 shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx Rxxxxxxx Bxxx Lxxxxxxx Gxxxxx Gxxxxxxx & Xxxx LLPGxxxx PC, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated hereinthe Closing Location, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (iBio, Inc.)
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, Certificates pursuant to this Agreement shall be subject in their discretion to the accuracy of and compliance with 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 settlement date pursuant to Section 3 hereofTime, to the accuracy of the statements of the Company Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) At the Closing Time, you shall have received:
(1) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of Xxxx X. Xxxxxxxx, Assistant General Counsel of the Company, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion and letter for each of the other Underwriters to the effect set forth in Exhibit A hereto.
(2) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of Xxxxxxxxxx, Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion and letter for each of the other Underwriters to the effect set forth in Exhibit B hereto.
(3) An opinion, dated the day of the Closing Time, of Xxxxxx Xxxxxxx & Xxxx LLP, special counsel for the Company, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit C hereto.
(4) An opinion, dated the day of the Closing Time, of Xxxxxxx & Xxxxxxx LLP, counsel for U.S. Bank Trust National Association, as the Trustee, Subordination Agent and Loan Trustee under the Indentures in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit D hereto.
(5) An opinion, dated the day of the Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., tax counsel for the Trustee, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit E-1 hereto.
(6) An opinion, dated the day of the Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Trustee, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit E-2 hereto.
(7) An opinion, dated the day of the Closing Time, of King & Wood Mallesons for the Liquidity Provider, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit F hereto.
(8) An opinion, dated the day of the Closing Time, of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Liquidity Provider, in form and substance satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit G hereto and to such further effect as counsel to the Underwriters may reasonably request.
(9) An opinion, dated the day of the Closing Time, from Milbank LLP, counsel for the Underwriters, with respect to the issuance and sale of the Certificates, the Pricing Disclosure Package, the Prospectus and other related matters as you may reasonably require.
(b) The ProspectusProspectus shall have been filed with the 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 (without giving effect to Rule 424(b)(8)) and in accordance with Section 3(a) hereof; the final term sheet contemplated by Section 3(b) hereof, and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required periods prescribed for such filings by Rule 424(b)433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, counsel for the Companyinitiated or, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate knowledge of the Company, signed threatened by the Chief Executive Officer Commission and the principal financial or accounting officer no notice of objection of the Company, dated the Closing Date, Commission 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 use of the Registration Statement or any notice objecting post-effective amendment thereto pursuant to its use has been issued and no proceedings for that purpose Rule 401(g)(2) under the Act shall have been instituted received by the Company; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated 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 knowledge 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 threatened 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 all requests for additional information by the Commission shall have been complied with to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateyour reasonable satisfaction.
(fc) The Company shall have requested and caused Xxxxxxxxx to have furnished to the 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 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 October 24, 2013 (inception) to November 20, 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;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial On 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 (f) include any supplement thereto at after the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)hereof, there shall not have been (i) any change or decrease decrease, specified in the letter or letters referred to in paragraph (fd) of this Section 6 4 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business or properties of the CompanyCompany and its subsidiaries, whether or not arising from transactions in the ordinary course of businesstaken as a whole, except as set forth in or contemplated in the 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 Representativeyour reasonable judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities Certificates as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Pricing Disclosure Package and the Prospectus (exclusive Prospectus; and you shall have received a certificate of any supplement thereto).
(h) Prior the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Time, to the Closing Dateeffect that (i) there has been no such material adverse change contemplated by clause (ii) above, in the Company shall have furnished and its subsidiaries, (ii) that the representations and warranties in Section 1 hereof and also the representations and warranties of the Company contained in the Operative Documents are true and correct with the same force and effect as though made at such Closing Time, and as to the Representative such further information, certificates and documents other matters as the Representative you may reasonably request.
(id) FINRA At the time of the execution of this Agreement and also at the Closing Time, Ernst & Young LLP shall not have raised any objection furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you, 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 the Underwriters with respect to the fairness or reasonableness of financial statements and certain financial information contained in the underwriting or other arrangements of Pricing Disclosure Package and the transactions contemplated herebyProspectus.
(je) The Securities Company shall have furnished to you and your counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the purpose of enabling such counsel to pass upon the matters to be duly listed subject covered by the opinions required to notice be delivered under subsection (a)(9) of issuance on this Section 4 and in order to evidence the NASDAQ Capital Marketaccuracy and completeness of any of the representations, satisfactory evidence warranties or statements, the performance of which any covenant by the Company theretofore to be performed, or the compliance with any of the conditions herein contained.
(f) Each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the date hereof and the date of the Closing Time, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, Underwriter, trustee, partner, director or person performing similar functions.
(g) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company’s unsecured debt securities by either nationally recognized statistical rating organization that is rating the Class AA Certificates or Class A Certificates, as set forth in the Issuer Free Writing Prospectus identified as Item (a) in Schedule IV hereto, and (ii) neither such nationally recognized statistical rating organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s unsecured debt securities.
(h) The Class AA Certificates and the Class A Certificates shall have received ratings equal to or higher than the ratings indicated in the free writing prospectus identified as Item (a) in Schedule IV hereto from the nationally recognized statistical rating organizations named therein.
(i) At or prior to the Closing Time, each Indenture and each Participation Agreement shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof Company and each other respective party thereto, and copies thereof shall have been issued as of furnished to you and your counsel. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the Closing Date, provisions hereof only if they are in all respects reasonably satisfactory to you and no proceedings for that purpose shall have been instituted or shall have been threatenedyour counsel. If any of the conditions condition specified in this Section 6 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, other than by reason of any default by any Underwriter, such failure to fulfill a condition may be waived by you, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not may be reasonably satisfactory in form and substance terminated by you by notice to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or Company at any time at or prior to, to the Closing Date by the Representative. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in writing or by telephone or facsimile confirmed Sections 5, 7 and 10 hereof, which provisions shall remain in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Xxxxxxxxx Xxxxxxx (i) Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Company, and (ii) Campbells LLP, Cayman Islands counsel for the Company, to have furnished to the Representative its Representatives their opinions dated the Closing Date and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A hereto.Representatives. BofA Securities, Inc. Xxxxxxx Sachs & Co. LLC Xxxxx & Company LLC X.X. Xxxxxx Securities LLC [●], 2021
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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, 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 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 Xxxxxxxxx BDO USA, LLP to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24from May 27, 2013 2021 (date of inception) through June 17, 2021, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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 BofA Securities, Inc. Xxxxxxx Xxxxx & Co. LLC Xxxxx & Company LLC X.X. Xxxxxx Securities LLC [●], 2021
(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 (f) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 6(e) or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the RepresentativeRepresentatives.
(kj) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Securities Purchase Agreement, the Securities Assignment Private Placement Shares Purchase Agreement, the Warrant Subscription AgreementInsider Letters, the Escrow Registration Rights Agreement and each of the Insider Letters.Administrative Services Agreement. BofA Securities, Inc. Xxxxxxx Sachs & Co. LLC Xxxxx & Company LLC X.X. Xxxxxx Securities LLC [●], 2021
(l) 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.
(mk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants Shares to be funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units Class A Ordinary Shares in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxxxxx Xxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Xxxxxxxxx Xxxxxxx Winston & Sxxxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions (including negative assurance statements) dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Mxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representative Representatives in form and substance acceptable to the form attached as Exhibit A heretoRepresentatives.
(cd) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative Representatives a certificate of the Company, signed by (i) each of the Chief Co-Executive Officer Chairmen and the principal financial or accounting officer Vice Chairman of the Company and (ii) the Secretary 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 SecuritiesOffering, 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 Certificate of Incorporation and the Bylaws of the Company are Charter is true and complete, have has not been modified and are 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.
(fg) The Company shall have requested and caused Xxxxxxxxx Withum to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24April 30, 2013 2018 (inception) through May 10, 2018, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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 (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativeRepresentatives.
(k) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Forward Purchase Agreements, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters.
(l) 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 (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 funded deposited into the Trust Account.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Adviser and the Administrator contained herein as of the Execution Time, the Closing Date and any settlement date for the Option Securities pursuant to Section 3 hereof, 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 have been filed in the manner and within the time period required by Rule 424(b)497; 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 threatenedthreatened 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.
(b) The Company, the Adviser and the Administrator shall have requested and caused Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, the Adviser and the Administrator to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives in substantially the form attached hereto as Exhibit A.
(c) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, special Maryland counsel for to the Company, to have furnished to the Representative Representatives its opinions opinion as to certain matters pertaining to Maryland law, dated the Closing Date and addressed to the Representative Representatives in substantially the form attached hereto as Exhibit A hereto.B.
(cd) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP[ ], counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company Company, the Adviser and the Administrator 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 Each of the Company, the Adviser and the Administrator shall have furnished to the Representative Representatives a certificate of the Companycertificate, signed by the Chief Executive Officer principal executive officer 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 each Preliminary Statement, the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus, any amendment amendments or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, supplements thereto and this Agreement and that:
(i) the The representations and warranties of the Company 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 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; and the statements made in the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus (and any supplement thereto) under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Recent Developments” are true and correct as of 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 Effectmaterial 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 Basic Prospectus, the Preliminary Final Prospectus and the Final 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 Xxxxxxxxx KPMG LLP to have furnished to the RepresentativeRepresentatives, at the Execution Time and at Time, the Closing Date, Date and any settlement date letters, dated respectively as of the Execution Time and as of Time, the Closing DateDate and any settlement date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a registered public accounting firm that it is an independent with respect to the Company accountant within the meaning of the Act and the Exchange 1940 Act and the applicable rules Rules and regulations adopted by the Commission thereunder Regulations and that they have it has audited the consolidated statement of assets and liabilities, including the consolidated schedule of investments of the Company as of December 31, 2011 and the related consolidated statement of operations, changes in net assets and cash flows for the period ended December 31, 2011 and performed a review of the audited unaudited interim financial statements information of the Company for the three-month period October 24ended [ ], 2013 (inception) to November 202012 and as at [ ], 20132012, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(iiv) in their its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus and reported on by them it comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the Rules and Regulations; and
(v) on the basis of a reading of the latest unaudited financial statements made available by the Company; its 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 [ ], 2012 and as at [ ], 2012; 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 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, 2011, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and the 1940 Act and with the related rules and regulations adopted by the Commission;Commission with respect to registration statements on Form N-2; 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 Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus; and
(ii2) they have with respect to the period subsequent to [ ], 2012, there were any changes, at a specified date not more than three business 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 net assets or stockholders’ equity of the Company as compared with the amounts shown on the [ ], 2012 unaudited statement of assets and liabilities included in the Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus, or for the period from [ ], 2012 to such specified date there were any decreases, as compared with [ ], 2012 in net revenues or income before income taxes or in total or per share amounts of 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.
(vi) it has performed certain other specified procedures as a result of which they it 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 Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus, including the information set forth under the captions “DilutionFees and Expenses” and “CapitalizationSelected Financial and Other Data” in the Statutory Basic Prospectus, the Preliminary Final Prospectus and the Final 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 Final Prospectus in this paragraph (fh) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any post-effective 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 (fh) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), prospects, earnings, business or properties of the Company, the Adviser and the Administrator, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Basic Prospectus, the Preliminary Final 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 RepresentativeRepresentatives, 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 post-effective amendment thereof), the Statutory Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The Except as otherwise provided in Schedule II, the obligations of the Underwriters to purchase and pay for the Underwritten Securities and the Option Securities, as the case may be, Class A Certificates pursuant to this Agreement shall be subject to the accuracy of and compliance with 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 settlement date pursuant to Section 3 hereofTime, to the accuracy of the statements of the Company Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) The ProspectusAt the Closing Time, 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 under the Securities Act and no proceedings for that purpose therefor shall have been instituted or threatenedthreatened by the Commission.
(b) The Company At the Closing Time, you shall have requested received:
(1) An opinion and caused Xxxxxxxxx letter, dated the Closing Time, from Xxxx X. Xxxxxxx, Senior Vice President and General Counsel of the Company, in form reasonably satisfactory to you and your counsel substantially in the form of Exhibits A-1 and A-2.
(2) An opinion, dated as of the Closing Time, of Debevoise & Xxxxxxxx LLP, as counsel for the Company, in form reasonably satisfactory to you and your counsel substantially in the form of Exhibit B.
(3) An opinion, dated as of the Closing Time, from (i) Xxxxxxx & Xxxxxxx LLP, counsel for the CompanyU.S. Bank, to have furnished individually, as Subordination Agent, Trustee and Loan Trustee, and (ii) Xxxxxxxx, Xxxxxx & Finger, P.A., corporate counsel to the Representative its opinions Subordination Agent, Trustee and Loan Trustee, each in form and substance reasonably satisfactory to you and your counsel and substantially to the effect set forth in Exhibit C-1 and C-2 hereto, respectively.
(4) An opinion, dated as of the Closing Date Time, from (i) Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special counsel for the Liquidity Provider, (ii) Xxxxxx Xxxxxx XXX, Xxx Xxxx counsel for the Liquidity Provider, and addressed (iii) Christian Le Hir, Chief Legal Officer of the Liquidity Provider, each in form and substance satisfactory to you and your counsel, substantially to the Representative effect set forth in Exhibits X-0, X-0 and D-3 hereto, respectively.
(5) An opinion, dated as of the Closing Time, from Xxxxxxx & Xxxxxxx LLP, counsel for U.S. Bank N.A., as Escrow Agent, in form attached as and substance satisfactory to you and your counsel, substantially to the effect set forth in Exhibit A E hereto.
(c6) The Representative shall have received An opinion, dated as of the Closing Time, from Akin Gump Xxxxxxx Xxxxxxxx, Xxxxxx & Finger, P.A., tax counsel to the Trustee, in form and substance reasonably satisfactory to you and your counsel and substantially to the effect set forth in Exhibit F hereto.
(7) An opinion, dated as of the Closing Time, from (i) Lincoln Finkenberg, Managing Counsel for the Depositary, and (ii) Xxxxx Xxxx LLP, counsel for the Depositary, each in form and substance reasonably satisfactory to you and your counsel and substantially to the effect set forth in Exhibit G-1 and G-2 hereto, respectively
(8) An opinion, dated as of the Closing Time, from Shearman & Xxxx Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representativeeffect that the opinions delivered pursuant to subsections (b)(1) through (b)(7) of this Section 4 appear on their face to be appropriately responsive to the requirements of this Agreement except, specifying the same, to the extent waived by you and with respect to the issuance and sale of the SecuritiesClass A Certificates, the Registration Statement, the Statutory ProspectusGeneral Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative you 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.
(dc) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated i) At the Closing DateTime, to the effect that the signers of such certificate there shall not have carefully examined the Registration Statement each Preliminary Prospectusbeen, 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 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 Xxxxxxxxx to have furnished to the 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 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 October 24, 2013 (inception) to November 20, 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;
(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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of Final Prospectus, any supplement thereto), there shall not have been (i) any material adverse change or decrease specified in the letter condition, financial or letters referred to in paragraph (f) otherwise, of this Section 6 or (ii) any changethe Company and its subsidiaries considered as one enterprise, or any development involving a prospective change, in or affecting the financial condition, earnings, business affairs or properties business prospects of the CompanyCompany and its subsidiaries considered as one enterprise, whether or not arising from transactions in the ordinary course of business, and you shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of such Closing Time, to the effect that there has been no such material adverse change and to the effect that the representations and warranties of the Company contained in Section 1 hereof are true and correct with the same force and effect as though made at such Closing Time.
(d) Subsequent to the execution and delivery of this Agreement and prior to the Closing Time, neither Xxxxx’x Investors Service, Inc. (“Moody’s”) nor Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business (“S&P”), shall have downgraded the rating accorded any of the Company’s securities (except as set forth in for any pass through certificates) or contemplated announced that any probable downgrading of such rating is about occur in the Statutory Prospectus near future; provided that maintenance by either Moody’s or S&P of their existing negative outlook for the Company (without any definitive indication that a probable downgrade is about to occur in the near future) shall not constitute a violation of this condition.
(e) Promptly after the execution of this Agreement and also at the Closing Time, you shall have received from Ernst &Young LLP a letter or letters, dated as of the respective dates of delivery thereof, in form and substance reasonably satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained, or incorporated by reference in the General Disclosure Package and the Prospectus Final Prospectus.
(exclusive f) At the Closing Time, each of any supplement thereto(1) the effect Equipment Notes, the Participation Agreements (including all the legal opinions, documents and certificates required to be delivered as conditions precedent to the issuance of whichEquipment Notes thereunder) and the Indentures relating to the 777-223ER Aircraft and (2) the Intercreditor Agreement, the Liquidity Facility, the Class A Trust Agreement, the Escrow Agreement, the Deposit Agreement and the Note Purchase Agreement shall have been executed and delivered by each party thereto; the representations and warranties of the Company contained in such agreements shall be accurate as of the Closing Time and you shall have received a certificate of the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Time, to such effect.
(g) The Company shall have furnished to you and your counsel, in any case form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the purpose of enabling such counsel to pass upon the matters referred to in clause subsection (ib)(8) or (ii) above, is, of this Section 4 and in order to evidence the sole judgment accuracy and completeness of any of the Representativerepresentations, so material and adverse as warranties or statements, the performance of any covenant by the Company theretofore to make it impractical be performed, or inadvisable to proceed the compliance with the offering or delivery any 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)conditions herein contained.
(h) Prior to Each of the Closing Date, the Company Appraisers shall have furnished to the Representative Underwriters a letter from such further informationAppraiser, certificates addressed to the Company and documents dated the date hereof, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as the Representative may reasonably requestan officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(i) FINRA shall not have raised any objection with respect to At the fairness or reasonableness of Closing Time, the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities Class A Certificates shall be duly listed subject to notice of issuance on the NASDAQ Capital Marketrated “A-” by S&P; and “Baa3” by Moody’s. All such opinions, satisfactory evidence of which certificates, letters and documents shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) On the Execution Date, the Company shall have caused be deemed to be duly executed in compliance with the provisions hereof only if they are in all respects satisfactory to you 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedyour counsel. If any of the conditions condition specified in this Section 6 4 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, other than by reason of any default by any Underwriter, such failure to fulfill a condition may be waived by you, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not may be reasonably satisfactory in form and substance terminated by you by notice to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or Company at any time at or prior to, to the Closing Date by the Representative. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in writing or by telephone or facsimile confirmed Sections 5, 6 and 8 hereof, which provisions shall remain in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Xxxxxxxxx Xxxxxxx Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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 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 Xxxxxxxxx KPMG to have furnished to the 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 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 October 24[[·], 2013 (inception) provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) 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 Representative.
(kj) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Insider Letter, the Registration Rights Agreement and each of the Insider LettersAdministrative Services Agreement.
(l) 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.
(mk) 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 funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx Ropes & Xxxx LLP, counsel for the Underwriters, at Xxx 1200 Xxxxxx Xxxxxx xxx Xxxxxxxx, Xxx Xxxx, Xxx XxxxXX 00000, 00000Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The several obligations of the Underwriters to purchase and pay for the Underwritten Securities and the Option Securities, as the case may be, Certificates pursuant to this Agreement shall be subject in their discretion to the accuracy of and compliance with the representations and warranties on the part of FedEx and the Company contained herein as of the Execution Time, date hereof and the Closing Date and any settlement date pursuant to Section 3 hereofTime, to the accuracy of the statements of FedEx’s and the Company Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by each of FedEx and the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) At the Closing Time, you shall have received:
(1) An opinion and negative assurance letter, dated the day of the Closing Time, of Xxxx X. Xxxxx, Executive Vice President, General Counsel and Secretary of FedEx, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion and letter for each of the other Underwriters to the effect set forth in Exhibit A hereto.
(2) An opinion, dated the day of the Closing Time, of Xxxxx Xxxx & Xxxxxxx LLP, special counsel for the Company, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit B hereto.
(3) An opinion, dated the day of the Closing Time, of Xxxxxx Xxxxx LLP, counsel for Wilmington Trust Company, as the Trustee, Subordination Agent and Loan Trustee under the Indentures and Paying Agent in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit C hereto.
(4) An opinion, dated the day of the Closing Time, of Xxxxxx Xxxxxxx & Xxxx LLP, special New York counsel for the Liquidity Provider, in form and substance satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit D hereto and to such further effect as counsel to the Underwriters may reasonably request.
(5) An opinion and negative assurance letter, dated the day of the Closing Time, from Milbank LLP, counsel for the Underwriters, with respect to the issuance and sale of the Certificates, the Pricing Disclosure Package, the Prospectus and other related matters as you may reasonably require.
(b) The ProspectusProspectus shall have been filed with the 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 (without giving effect to Rule 424(b)(8)) and in accordance with Section 3(a) hereof; the Final Term Sheet contemplated by Section 3(b) hereof, and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required periods prescribed for such filings by Rule 424(b)433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLPinitiated or, counsel for to the knowledge of the Company, to have furnished threatened by the Commission and no notice of objection of the Commission to the Representative its opinions dated use of the Closing Date and addressed Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or, to the Representative in knowledge of the form attached as Exhibit A heretoCompany, threatened by the Commission; and all requests for additional information by the Commission shall have been complied with to your reasonable satisfaction.
(c) The Representative At the Closing Time, there shall not have been, since the respective dates as of which information is given in the Pricing Disclosure Package and the Prospectus, any material adverse change in the business, property, financial condition or results of operations of the FedEx and its consolidated subsidiaries taken as a whole; and you shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial President or accounting officer any Vice President of the CompanyCompany and of FedEx, dated as of the date of the Closing DateTime, 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) in the case of the certificate to be provided by the President or a Vice President of FedEx, that there has been no such material adverse change, (ii) that the other representations and warranties of the Company or FedEx contained in this Agreement Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, except to the extent that such representations and warranties expressly relate to an earlier date or later date (in which case such representations and warranties are true and correct on and as of such earlier date or will be true and correct on and as of such later date, as the Closing Date with the same effect as if made on the Closing Date and case may be), (iii) that the Company or FedEx as the case may be, has complied in all material respects with all the agreements and satisfied all the conditions on its part their respective parts to be performed or satisfied at or prior to the Closing Date;
Time and (iiiv) 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, or threatened by the Commission. The officer signing and delivering each such certificate may rely upon the best of his or her knowledge as to the Company’s knowledge, proceedings threatened; and.
(iiid) since At the date time of the most recent execution of this Agreement and also at the Closing Time, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you, 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 the Underwriters with respect to the financial statements included and certain financial information contained in the Statutory Prospectus Pricing 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 and the Prospectus (exclusive of any supplement thereto)Prospectus.
(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 you 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 Xxxxxxxxx to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Dateyour counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the Representativepurpose of enabling such counsel to pass upon the matters to be covered by the opinions required to be delivered under subsection (a)(5) of this Section 4 and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company theretofore to be performed, or the compliance with any of the conditions herein contained.
(f) Each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the date hereof and the Closing Date, confirming that they are a registered public accounting firm that such Appraiser and each of its directors and officers (i) 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 not an affiliate of the Company for the period October 24or any of its affiliates, 2013 (inception) to November 20, 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;
(ii) they does not have performed certain other specified procedures as a result of which they determined that certain information of an accountingany substantial interest, financial direct or statistical nature (which is limited to accountingindirect, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus Company or any of its affiliates 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 is not connected with the Company or any of its affiliates as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letteran officer, employee, promoter, Underwriter, trustee, partner, director or person performing similar functions.
(g) Subsequent At the Closing Time, the rating assigned as of the Applicable Time by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act, to any debt securities of the Company (including for purposes of this Section 6(b) any rating indicated by the Company as of the date of this Agreement as the rating orally confirmed to the Execution Time or, if earlier, Company by any such rating organization as the dates as of which information is given in rating to be assigned to the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there Certificates) shall not have been (i) lowered since the Applicable Time nor shall any change or decrease specified in such rating organization have publicly announced since the letter or letters referred to in paragraph (f) of this Section 6 or (ii) Applicable Time that it has placed any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business or properties debt securities 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 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)Company on what is commonly termed a “watch list” for possible downgrading.
(h) Prior to the Closing Date, the Company The Certificates shall have furnished received ratings equal to or higher than the Representative such further information, certificates and documents as ratings indicated in the Representative may reasonably requestFinal Term Sheet from the nationally recognized statistical rating organizations named therein.
(i) FINRA shall not have raised any objection with respect At or prior to the fairness or reasonableness Closing Time, each of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which Operative Documents shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered a letter from each Participant, substantially in by the form of Exhibit C hereto.
Company (m) At least one Business Day prior to the Closing Dateextent a party thereto) and each other respective party thereto, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof and copies thereof shall have been issued as of furnished to you and your counsel. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the Closing Date, provisions hereof only if they are in all respects reasonably satisfactory to you and no proceedings for that purpose shall have been instituted or shall have been threatenedyour counsel. If any of the conditions condition specified in this Section 6 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, other than by reason of any default by any Underwriter, such failure to fulfill a condition may be waived by you, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not may be reasonably satisfactory in form and substance terminated by you by notice to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or Company at any time at or prior to, to the Closing Date by the Representative. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in writing or by telephone or facsimile confirmed Sections 5, 7 and 10 hereof, which provisions shall remain in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Samples: Underwriting Agreement (Fedex 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 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 Xxxxxxxxx Xxxxxxx Ellenoff Xxxxxxxx & Schole LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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 DateDate or settlement date (as applicable), 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 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 DateDate 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 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 Xxxxxxxxx Withum to have furnished to the RepresentativeRepresentatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the RepresentativeRepresentatives, 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 October 24from March 15, 2013 2016 (date of inception) through December 31, 2016, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date or settlement date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativeRepresentatives.
(kj) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Insider Letter, the Registration Rights Agreement and each of the Insider LettersAdministrative Services Agreement.
(lk) On or prior to the Execution Effective Date, the Company shall have caused to be duly executed and delivered a letter from each Participant, substantially in declared the form of Exhibit C heretoDividend.
(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 funded into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested furnished to the Representatives the opinion, dated the Closing Date, in the form and caused Xxxxxxxxx substance as set forth in Exhibit A-1 hereto, and the letter, dated the Closing Date, in the form and substance as set forth in Exhibit A-2 hereto, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, to have furnished or such other counsel reasonably acceptable to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxxxx & Xxxx Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeDate, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Prospectus and any amendment or supplement theretoFinal Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since Since the date of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a certificate signed by the Secretary letter or Assistant Secretary letters (which may refer to letters previously delivered to one or more 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 Xxxxxxxxx to have furnished to the Representative, at the Execution Time and at the Closing Date, lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a an independent registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and covering matters that they have performed a review of are ordinarily covered by “comfort letters” to underwriters with respect to the audited financial statements of the Company for the period October 24, 2013 (inception) to November 20, 2013, 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 Final Prospectus; provided, however, that the letter furnished on and reported on by them comply dated 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) they have performed certain other specified procedures as Closing Date shall use 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 “Dilutioncut-off” 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 date no more than three business days prior to the transaction contemplated hereby as the Representatives may reasonably requestClosing Date. References to the Final Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or decrease incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (fe) of this Section 6 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor other), 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 Company and the Prospectus (exclusive of any supplement thereto) its subsidiaries the effect of which, which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) The Representatives shall have received from counsel, satisfactory to the Representatives, such opinion or opinions, dated the Closing Date, with respect to compliance with the laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the Securities, the Prospectus and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall have received an opinion from tax counsel for the Company, satisfactory to the Representatives and dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Final Prospectus.
(j) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwritersits 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 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 Xxxxxxxxx Xxxxxxx Kxxxxxxx & Exxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions (including negative assurance statements) dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Mxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representative Representatives in form and substance acceptable to the form attached as Exhibit A heretoRepresentatives.
(cd) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative Representatives 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 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 SecuritiesOffering, 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 Certificate of Incorporation and the Bylaws of the Company are Charter is true and complete, have has not been modified and are 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.
(fg) The Company shall have requested and caused Xxxxxxxxx Withum to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24January 14, 2013 2020 (inception) through January 16, 2020, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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 (f(g) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f(g) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), 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) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the RepresentativeRepresentatives, 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativeRepresentatives.
(k) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Forward Purchase Agreement, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters.
(l) 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 (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 funded deposited into the Trust Account.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (CC Neuberger Principal Holdings 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 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 Xxxxxxxxx Xxxxxxx XxXxxxxxx Will & Xxxxx LLP, 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 A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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 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 Xxxxxxxxx to have furnished to the 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 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 October 24February 2, 2013 2011 (inception) to November 20[●], 20132011, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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 Closing Date, the Sponsor shall have entered into an escrow agreement with AST, as escrow agent, or such other escrow agent that is reasonably acceptable to the Representative, pursuant to which the Sponsor shall deliver into escrow the Founder’s Shares and Sponsor Warrants with such Founder’s Shares and Sponsor Warrants being held in escrow until satisfaction of the applicable conditions described therein.
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance have been authorized for quotation on the NASDAQ Capital MarketOTC Bulletin Board, and satisfactory evidence of which such actions shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) On or before the Execution Effective Date, the Company Representative shall have caused to be duly executed and delivered a letter received the Secondary Market Trading Survey from each ParticipantXxxxxx X. Xxxxxx, substantially in the form of Exhibit C heretoEsq.
(m) At least one Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Sponsor Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Global 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 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 Xxxxxxxxx Xxxxxxx Gxxxxxx Pxxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.. Credit Suisse Securities (USA) LLC January 7, 2021
(d) The Company shall have furnished to the 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 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 Xxxxxxxxx WithumSmith+Bxxxx, PC to have furnished to the 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 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 October 24from September 18, 2013 2020 (date of inception) through October 16, 2020, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 Credit Suisse Securities (USA) LLC January 7, 2021
(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 (f(e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (f(e) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) 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 Representative.
(kj) On the Effective Date, the Company shall have delivered to the 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 and Stockholder Rights Agreement. Credit Suisse Securities (USA) LLC January 7, 2021
(l) 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.
(mk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused a portion of the purchase price for the Private Placement Warrants to be funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Dxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, hereunder 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 settlement date pursuant to Section 3 hereofDate, 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 If filing the Prospectus, and or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Act or the Securities Act Regulations, the Company shall have been filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required by (without reliance on Rule 424(b424(b)(8) or 164(b) under the Act); and the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof, any Rule 462 Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted initiated or threatened; and any request of the Commission or the Underwriters for additional information (to be included in the Registration Statement, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Representative shall have received confirmation from Axxxxx Xxxxxxxxxx PLLC that there are no claims to which its representation has been sought and that are outstanding in respect of the Company.
(c) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLPAxxxxx Xxxxxxxxxx PLLC, securities counsel for the Company, to have furnished to the Representative its opinions their written opinion and Rule 10b-5 negative assurance letter, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representative in the form attached as Exhibit A heretoand its counsel.
(cd) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx the Rule 10b-5 negative assurance letter of Rxxxxxxx Bxxx Lxxxxxxx Gxxxxx Gxxxxxxx & Xxxx LLPGxxxx PC, counsel for the Underwriters, such opinion or opinions’ counsel, dated the Closing Date Date, and addressed to the 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 such matters as the Representative Underwriters may reasonably require, and the Company shall have furnished to such counsel Rxxxxxxx Brog Leinwand Gxxxxx Gxxxxxxx & Gxxxx PC such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Representative shall have received the opinion of Fish & Rxxxxxxxxx P.C., special intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representative and its counsel.
(f) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer Chief Financial Officer of the CompanyCompany or any other officers of the Company acceptable to the Representative in its discretion, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Pricing Disclosure Package and the Prospectus and any amendment supplements or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, amendments 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 or other order (A) suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof or any amendment thereof, or (B) suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued issued, and no proceedings proceeding for that purpose have has been instituted or, to the Company’s their knowledge, threatened; andis contemplated by the Commission or any state or regulatory body;
(iii) since the date of the most recent financial statements included in the Statutory Prospectus Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in Change; and
(iv) the Statutory Prospectus Company has complied with the terms and conditions of this Agreement on its part to be complied with up to the Prospectus (exclusive time of any supplement thereto)closing on the Closing Date.
(eg) The Company Representative shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary received on and as of the Company, dated Closing Date satisfactory evidence of the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and the Bylaws good standing of the Company are true and complete, have not been modified and are its subsidiary in full force and effect, (ii) that writing from the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies applicable Secretary of all correspondence between the Company or State of its counsel and the Commission, and (iv) as to the incumbency jurisdiction of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateorganization.
(fh) The Company shall have requested and caused Xxxxxxxxx the Auditors to have furnished to the Representative, at the Execution Time and at the Closing Date, lettersa letter, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that they are a each is an independent registered public accounting firm that is independent with respect to the Company within the meaning of the Securities Act and the Exchange Act and covering, without limitation, the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the Company’s audited financial statements as of the Company and for the period October 24year ended June 30, 2013 (inception) to November 20, 20132017, and stating in effect that:
(i) in their opinion the Company’s audited financial statements as of and the year ended June 30, 2016, and the various financial statement schedules included disclosures related thereto contained in the Registration Statement, the Statutory Preliminary Prospectus, the Prospectus and the Prospectus Issuer Free Writing Prospectuses, if any.
(i) The Company shall have requested and reported on by them comply caused the Auditors to have furnished to the Representative, at the Closing Date, a letter, dated as to form in all material respects with the applicable accounting requirements of the Closing Date, in form and substance satisfactory to the Representative, confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the related rules Exchange Act and regulations adopted by covering, without limitation, the Commission;
(ii) they have performed financial statements and certain other specified procedures as a result of which they determined that certain financial 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 contained in the Registration Statement, the Statutory Preliminary Prospectus, the Prospectus and the ProspectusIssuer Free Writing Prospectuses, 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 (f) include any supplement thereto at the date of the letterif any.
(gj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Prospectus, there shall not have been (iA) any change or decrease specified in the letter or letters referred to in paragraph (fh) of this Section 6 4 or (iiB) any changeMaterial Adverse Change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (iA) or (iiB) above, is, in the sole judgment of the 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 Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(hk) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative Underwriters may reasonably request.
(im) FINRA The Company shall not have raised any objection filed a Listing of Additional Shares form with respect to NYSE: American covering the fairness or reasonableness of Shares and the underwriting or other arrangements of the transactions contemplated herebyUnderwriter Shares.
(jn) The Securities shall be duly listed subject to notice of issuance on At the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective DateExecution Time, the Company shall have delivered furnished to the Representative Lock-Up Agreements 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedLock-Up Parties. If any of the conditions specified in this Section 6 4 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 4 shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx Rxxxxxxx Bxxx Lxxxxxxx Gxxxxx Gxxxxxxx & Xxxx LLPGxxxx PC, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated hereinthe Closing Location, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (iBio, 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 contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereofDate, 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, Underwriters shall have received confirmation from each of Hxxxx Lovells and any supplement thereto, have Bxxxxxx Xxxxx LLP that there are no claims to which its representation has been filed sought and that are outstanding in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness respect 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 threatenedCompany.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx each of Hxxxx Lovells, U.S. counsel for the Company, and Bxxxxxx Xxxxx LLP, Canadian counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date Underwriters opinions, in form and addressed substance satisfactory to the Representative in the form attached as Exhibit A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinionsLead Manager and its counsel, dated the Closing Date and addressed to the Representative, with respect Underwriters relating to (i) customary corporate opinions in relation to the issuance Company, 10393444 Canada Inc. and sale (ii) the Shares being “flow-through shares” that are not “prescribed shares” for the purposes of the Securities, flow-through share provisions of the Registration Statement, the Statutory Prospectus, the Prospectus Tax Act.
(together with any supplement theretoc) and other related matters as the Representative may reasonably require, and the The Company shall have requested and caused Bxxxxxx Xxxxx LLP, Canadian counsel for the Company, to have furnished to such counsel such documents as they request for the purpose Underwriters opinions, in form and substance satisfactory to the Lead Manager and its counsel, dated the Closing Date and addressed to the Underwriters relating to title to unpatented mining claims held by 10393444 Canada Inc. on the Grey Fox and Stock properties comprising part of enabling them to pass upon such mattersthe Canadian properties of the Company and its Subsidiaries.
(d) The Company shall have furnished to the Representative Underwriters a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer Chief Financial Officer of the CompanyCompany or any other officers of the Company acceptable to the Lead Manager, in its discretion, 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 the Subscription Agreements and that:
(i) the representations and warranties of the Company in this Agreement and the Subscription Agreements are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiiii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Public Record, 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 Underwriters shall have furnished to received on and as of the Representatives a certificate signed by Closing Date satisfactory evidence of the Secretary or Assistant Secretary good standing of the Company, dated 10393444 Canada Inc. in its jurisdiction of organization in writing from the Closing Date, certifying (i) that the Amended and Restated Certificate appropriate governmental authority 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 certificatejurisdiction.
(f) The Company shall have requested and caused Xxxxxxxxx to have furnished to the RepresentativePrior to, at the Execution Time and at or on, the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that they are 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 October 24, 2013 (inception) to November 20, 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;
(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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(h) Prior to the Closing Date, Date the Company shall have furnished to the Representative Underwriters such further information, certificates and documents as the Representative Underwriters may reasonably request.
(ig) FINRA The Shares shall not have raised any objection with respect been approved for listing on the NYSE and shall have been conditionally approved for listing, subject to the fairness or reasonableness satisfaction of the underwriting or other arrangements of customary conditions, on the transactions contemplated hereby.
(j) The Securities shall be duly listed TSX, subject only to official notice of issuance on the NASDAQ Capital Marketissuance, and satisfactory evidence of which such actions shall have been provided to the RepresentativeUnderwriters.
(kh) On The Company represents and covenants that it will only use proceeds of the Effective DateOffering as agreed to herein and it will not, directly or indirectly, use the proceeds of the Offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person:
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of any sanctions administered or enforced by OFAC, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, the “Sanctions”); or
(ii) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the Offering, whether as underwriter, advisor, investor or otherwise). The Company represents and covenants that for the past five (5) years, it has not knowingly engaged in, is not now knowingly engaging in, and will not engage in, and will use its best efforts to cause its directors, officers and key personnel not to engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(i) The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act.
(j) At the Execution Time, the Company shall have delivered furnished to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered Lead Manager a letter from each Participant, substantially in the form of Exhibit C hereto.
(m) At least one Business Day prior B to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale this Agreement from each officer and director of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedCompany. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Lead Manager 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 RepresentativeLead Manager. 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 electronically, or at such other place as the office Lead Manager, on behalf of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated hereinand the Company shall agree upon, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Xxxxxxxxx Xxxxxxx Ellenoff Xxxxxxxx & Schole LLP, 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 form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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, 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 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 Xxxxxxxxx to have furnished to the 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 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 October 24December 31, 2013 (inception) through March 31, 2014, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) 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 Representative.
(kj) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase AgreementSubscription Agreements, the Securities Assignment AgreementForward Purchase Contract, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters, the ROFR Letter, the Sponsor Agreement and the Administrative Services Agreement.
(l) 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.
(mk) At least one Business Day prior to the Closing Date, the Sponsor Sponsors shall have caused the purchase price for the Private Placement Warrants to be funded wired to the Company and the Company shall direct the trustee to deposit such funds, into the Trust AccountAccount and to hold such funds in escrow therein.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx XxxxXxxxxxx, Xxx Xxxx, XX 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Terrapin 3 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 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 Xxxxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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;; Credit Suisse Securities (USA) LLC [●], 2020
(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 Xxxxxxxxx Xxxxxx to have furnished to the 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 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 October 24from July 7, 2013 2020 (date of inception) through July 14, 2020, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, Credit Suisse Securities (USA) LLC [●], 2020 assets, rights, operations, condition (financial or properties 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 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(kj) On the Effective Date, the Company shall have delivered to the 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 Insider Letters, the Registration and Stockholder Rights Agreement and each of the Insider LettersAdministrative Services Agreement.
(l) 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.
(mk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused a portion of the purchase price for the Private Placement Warrants to be funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.. Credit Suisse Securities (USA) LLC [●], 2020
Appears in 1 contract
Samples: Underwriting Agreement (Equity Distribution 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 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 respective obligations hereunder and to the following additional conditions:
(ai) The Prospectus, and any supplement 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 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.
(bii) (a) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx Procter LLP, counsel for the Company, to shall have furnished to the Representative its opinions Representatives their opinion, dated the Closing Date or the applicable settlement date, as the case may be, and addressed to the Representative Representatives, substantially in the form attached hereto as Exhibit A hereto.B; and (b) the Company shall have requested and Xxxxxxx Procter LLP, tax counsel for the Company, shall have furnished to the Representatives their opinion, dated the Closing Date or the applicable settlement date, as the case may be, and addressed to the Representatives, substantially in the form attached hereto as Exhibit C.
(ciii) The Representative Representatives shall have received from Akin Gump Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the applicable settlement date, as the case may be, and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(div) The Company shall have furnished to the Representative Representatives a certificate of the CompanyCompany and the Operating Partnership, signed by the Chief Executive Officer and the principal financial or accounting officer of the CompanyCompany and the general partner of the Operating Partnership, dated the Closing DateDate or the applicable settlement date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, 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:
(ia) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date or the applicable settlement date, as the case may be, with the same effect as if made on such date and each of the Closing Date Company and the Company Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateDate or the applicable settlement date, as the case may be;
(iib) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledgeknowledge of the Company or the Operating Partnership, threatened; and
(iiic) 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, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package 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.
(fv) The Company shall have requested and caused Xxxxxxxxx to PricewaterhouseCoopers LLP shall have furnished to the RepresentativeRepresentatives, at the Execution Time and at the Closing DateDate or the applicable settlement date, as the case may be, letters, dated respectively as of the Execution Time and as of the Closing DateDate or the applicable settlement date, as the case may be, in form and substance satisfactory to the RepresentativeRepresentatives, 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 containing statements and information of the audited financial statements of type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company for the period October 24, 2013 (inception) to November 20, 2013, 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 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) 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 Disclosure Package 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 (f) include any supplement thereto at the date of the letter.
(gvi) Subsequent 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 material change or decrease specified increase in the in long-term debt, or decrease in consolidated total assets or total capital of Easterly Partners, LLC and its subsidiaries consolidated or stockholder’s equity of the Company referred to in paragraph 6 of the letter or letters provided by PricewaterhouseCoopers LLP and referred to in paragraph (fv) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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, 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 RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus.
(hvii) Prior to the Closing DateDate and any settlement date, the Company shall have furnished to the Representative Representatives, certificates of the Chief Financial Officer of the Company, substantially in the form of Exhibit D hereto.
(viii) Prior to the Closing Date and any settlement date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(jix) The Securities shall be duly listed have been approved for listing on the NYSE, subject to official notice of issuance on the NASDAQ Capital Marketissuance, and satisfactory evidence of which such actions shall have been provided to the RepresentativeRepresentatives.
(kx) On the Effective Date, the The Company and/or its stockholders shall have delivered to the Representative executed copies adopted articles of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement amendment and each of the Insider Letters.
(l) On the Execution Date, the Company shall have caused to be duly executed restatement and delivered a letter from each Participant, bylaws substantially in the form of Exhibit C heretoExhibits 3.1 and 3.2, respectively, to the Registration Statement, and such articles of amendment and restatement shall have been filed with the Maryland State Department of Assessments and Taxation and shall have become effective.
(mxi) At least one Business Day or prior to the Closing Date, the Sponsor Formation Transactions shall have caused the purchase price for been consummated and the Private Placement Warrants Shares shall have been sold to be funded into the Trust AccountEasterly Funds.
(nxii) No order preventing At or suspending prior to the sale Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer, director, director nominee and stockholder of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued as Company and or unitholder of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatenedOperating Partnership (after giving effect to the Formation Transactions) addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx XxxxXxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (Easterly Government Properties, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the 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, the Closing Date and any settlement date for the Option Securities pursuant to Section 3 hereof, 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 have been filed in the manner and within the time period required by Rule 424(b)497; 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 threatenedthreatened 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.
(b) The Company, the Adviser and the Administrator shall have requested and caused Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, the Adviser and the Administrator to have furnished to the Representatives its opinion, dated the Closing Date (or, if applicable, the settlement date) and addressed to the Representatives in substantially the form attached hereto as Exhibit A and otherwise in form and substance reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, special Maryland counsel for to the Company, to have furnished to the Representative Representatives its opinions opinion as to certain matters pertaining to Maryland law, dated the Closing Date (or, if applicable, the settlement date) and addressed to the Representative Representatives in substantially the form attached hereto as Exhibit A heretoB and otherwise in form and substance reasonably satisfactory to the Representatives.
(cd) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or, if applicable, the settlement date) and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, each Preliminary Prospectus and the Statutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company Company, the Adviser and the Administrator 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 Each of the Company, the Adviser and the Administrator shall have furnished to the Representative Representatives a certificate of the Companycertificate, signed by the Chief Executive Officer principal executive officer 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 DateDate (or, if applicable, the settlement 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, as well as each electronic road show used in connection with the offering of the Securities, supplements thereto and this Agreement and that:
(i) the The representations and warranties of the Company 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 (or, if applicable, the settlement date) with the same effect as if made on the Closing Date (or, if applicable, the settlement 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 DateDate (or, if applicable, the settlement date); and the statements made in the Base Prospectus, each Preliminary Prospectus and the Final Prospectus (and any supplement thereto) under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Recent Developments” are true and correct as of the Closing Date (or, if applicable, the settlement date);
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s, 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 Effectmaterial 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).
(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 Xxxxxxxxx KPMG LLP to have furnished to the RepresentativeRepresentatives, at the Execution Time and at Time, the Closing DateDate and any settlement date, letters, dated respectively as of the Execution Time and as of Time, the Closing DateDate and any settlement date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a registered public accounting firm that it is an independent with respect to the Company accountant within the meaning of the Act and the Exchange 1940 Act and the applicable rules Rules and regulations adopted by the Commission thereunder Regulations and that they have it has audited the consolidated statement of assets and liabilities, including the consolidated schedule of investments of the Company as of December 31, 2011 and the related consolidated statement of operations, changes in net assets and cash flows for the period from January 28, 2011 (commencement of operations) to December 31, 2011 and performed a review of the audited unaudited interim financial statements information of the Company for the three-month period October 24ended March 31, 2013 (inception) to November 202012 and as at March 31, 20132012 and the three-month and nine-month periods ended September 30, 2012 and as at September 30, 2012, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) in their its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Base Prospectus, each Preliminary Prospectus and the Final Prospectus and reported on by them it comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the Rules and Regulations; and
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; its limited review, in accordance with standards established under Statement on Auditing Standards No. 100, Interim Financial Statements, of the unaudited interim financial information for the three-month period ended March 31, 2012 and as at March 31, 2012 and the three-month and nine-month period ended September 30, 2012 and as at September 30, 2012; 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 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, 2011, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and the 1940 Act and with the related rules and regulations adopted by the Commission;Commission with respect to registration statements on Form N-2; 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, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus; and
(ii2) they have with respect to the period subsequent to September 30, 2012, there were any changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock, increase in debt or decreases in consolidated net assets of the Company, or decrease in per share net asset value as compared with amounts shown on the September 30, 2012 unaudited consolidated statement of assets and liabilities included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus, or for the period from September 30, 2012 to such specified date, there were any decreases in net assets resulting from the operations of the Company as compared with September 30, 2012, except in all instances for changes or decreases set forth in such letter.
(iii) it has performed certain other specified procedures as a result of which they it 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 Base Prospectus, each Preliminary Prospectus and the Final Prospectus, including the information set forth under the captions “DilutionFees and Expenses” and “CapitalizationSelected Financial and Other Data” in the Statutory Base Prospectus, each Preliminary Prospectus and the Final 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 Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any post-effective 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 (f) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), prospects, earnings, business or properties of the Company, the Adviser and the Administrator, 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 RepresentativeRepresentatives, 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 post-effective amendment thereof), the Statutory Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing DateDate (or, if applicable, the Company settlement date), the Company, the Adviser and the Administrator shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA Subsequent to the execution and delivery of this Agreement and prior to the Closing Date (or, if applicable, the settlement date) there shall not have raised occurred any objection with respect to downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the fairness or reasonableness direction of the underwriting possible change, in the rating accorded the Company or other arrangements any of the transactions contemplated herebysecurities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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 listed and each of the Insider Letters.
(l) On the Execution Date, the Company shall have caused to be duly executed admitted 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 authorized for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedtrading on NASDAQ. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, Underwriters on the Closing DateDate (or, if applicable, the settlement date).
Appears in 1 contract
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, Time and the Closing Date and any settlement date pursuant to Section 3 hereofor the applicable Settlement Date, as the case may be, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, Final Prospectus shall have been filed in with the manner and Commission pursuant to Rule 424(b) under the Act within the applicable time period required by Rule 424(b)prescribed for such filing and in accordance with Section 5(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 Alberta Securities Commission or the Commission;
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion and letter, dated the Closing Date or such Settlement Date, as the case may be, and addressed to the Representative Representatives, substantially in the form attached hereto as Exhibit A hereto.Annex B;
(c) The Representative Company shall have requested and caused XxXxxxxx Xxxxxxxx LLP, Canadian counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date or such Settlement Date, as the case may be, and addressed to the Representatives, with respect to the laws of the Province of Alberta and the federal laws of Canada applicable therein, substantially in the form attached hereto as Annex C.
(d) The Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLPXxxxx L.L.P., U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date or such Settlement Date, as the case may be, and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Statutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representatives shall have received from Osler, Xxxxxx & Harcourt LLP, Canadian counsel for the Underwriters, such opinion or opinions, dated the Closing Date or such Settlement Date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture 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;
(f) The Representatives shall have received from the Vice President & Corporate Secretary of the Company a certificate, dated the Closing Date or such Settlement Date, as the case may be, and addressed to the Representatives, substantially in the form attached hereto as Annex D.
(g) The Representatives shall have received from Norton Xxxx Xxxxxxxxx US LLP, U.S. regulatory counsel to the Company, dated the Closing Date or such Settlement Date, as the case may be, an opinion substantially in the form attached hereto as Annex E.
(h) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer two of the Companyits senior officers, dated the Closing Date or such Settlement Date, as the case may be, to the effect that the signers of such certificate have carefully examined reviewed the Registration Statement each Preliminary Statement, the Disclosure Package, the Final Prospectus, any supplements to the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the SecuritiesFinal Prospectus, and this Agreement Agreement, and thatto the best knowledge of such signers, after due investigation:
(i) i. the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or such Settlement Date, as the case may be, with the same effect as if made on the Closing Date or such Settlement Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or such Settlement 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, to the Company’s knowledge, threatenedthreatened by the Alberta Securities Commission or the Commission; 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 Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final 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 completeThe Representatives shall have received from PricewaterhouseCoopers LLP, 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 Xxxxxxxxx to have furnished to the Representative’s independent auditor, a letter or letters dated at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time Date and as of the Closing at each such Settlement Date, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 October 24, 2013 (inception) to November 20, 2013, 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 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 CommissionFinal Prospectus;
(iij) 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[Reserved.]
(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 (f) include any supplement thereto at the date of the letter.
(gk) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus thereto) and the Disclosure Package 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 paragraphs (fi) and (j) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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 supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereofthereto), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).;
(hl) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by Standard & Poors Rating Services, Xxxxx’x Investor Services or Dominion Bond Rating Service Limited and no such rating service shall have publicly announced or otherwise informed the Company that it has under surveillance or review, with possible negative implications, its rating or outlook of the Company or any of the Company’s debt securities or preferred stock;
(m) Prior to the Closing Date or such Settlement Date, as the case may be, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect request and as is customary in offerings of securities similar to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedSecurities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 or such Settlement Date, as the case may be, by the Representative. Notice Representatives upon 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 Akin Gump Xxxxxxx Xxxxx Xxxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the UnderwritersAttention: Xxxxxx Xxxxxxxx, at Xxx Xxxxxx Xxxx000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, Xxxx 00000 on the Closing DateDate or such Settlement Date (or such other date as provided in this Section 6) or such other place as the Representatives shall so instruct.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its 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 theretosuch 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 and caused Xxxxxxxxx Xxxxxxx Xxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion, dated the Closing Date and addressed to the Representative Representatives, in the form attached hereto as Exhibit A hereto.A.
(c) The Representative Company shall have requested and caused Xxxx Xxxxx LLP, tax counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Xxxxxxx Xxxxx LLP, Maryland corporate counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form attached hereto as Exhibit C.
(e) The Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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.
(df) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf 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, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, Disclosure Package 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) the Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledgeKnowledge, threatened; and;
(iii) since the date of the most recent financial statements included in the Statutory Prospectus Prospectus, and the Prospectus (exclusive of any supplement thereto)document that is incorporated by reference therein, there has been no Material Adverse Effectmaterial adverse effect on the business, financial condition, results of operations, management, properties 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 Statutory Prospectus Disclosure Package and the Prospectus; and
(iv) they have carefully examined the Disclosure Package and the Prospectus and, in their opinion (exclusive A) as 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 Disclosure Package and the Bylaws Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the Company are true and complete, have statements therein 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 Commissionmisleading, and (ivB) as since the Applicable Time, no event has occurred which should have been set forth in a supplement or amendment to the incumbency of Disclosure Package and the officers of the Company. The documents referred to in such certificate shall be attached to such certificateProspectus.
(fg) The Company shall have requested and caused Xxxxxxxxx Ernst & Young LLP to have furnished to the RepresentativeRepresentatives, at the Execution Time and at the Closing Date, lettersa letter, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public accounting firm that is independent with respect to offerings as contemplated in the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of the audited any unaudited interim financial statements information of the Company for the period October 24, 2013 (inception) to November 20, 2013, 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 Prospectus and reported in accordance with Statement 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) 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 requestAuditing Standards No. 100. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given or incorporated by reference 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 (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the business, financial condition, earningsresults of operations, business management, properties or properties prospects of the CompanyCompany 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 supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, 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).
(hi) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ij) The Securities shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) FINRA shall not have raised any objection with respect to the fairness or and reasonableness of the underwriting or other terms and arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust under this 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.
(l) On the Execution Date, the The Company shall have caused furnished to be duly executed and delivered the Representatives 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 funded into the Trust Account.
(n) No order preventing or suspending the sale D hereto from each director and executive officer of the Units Company named in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued as of Registration Statement and the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatenedProspectus. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Procter LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxx XxxxXxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing 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 Xxxxxxxxx Xxxxxxx Winston & Xxxxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusGeneral Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representative 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, 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, 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 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 Xxxxxxxxx Xxxxxx to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24from [February 10, 2013 2021] (inception) through [March 4, 2021], provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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; 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) 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 RepresentativeRepresentatives.
(kj) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Private Placement Agreement, the Warrant Subscription AgreementInsider Letter, the Escrow Registration Rights Agreement and each of the Insider LettersAdministrative Services Agreement.
(l) 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.
(mk) 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 Portion to be funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxx Xxxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Aurvandil 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 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 Xxxxxxxxx Xxxxxxx Winston & Xxxxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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, 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 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 Xxxxxxxxx Withum to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24from June 2, 2013 2020 (date of inception) through June 4, 2020, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letterletters.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) 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 RepresentativeRepresentatives.
(kj) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Insider Letters, the Registration Rights Agreement and each of the Insider LettersAdministrative Services Agreement.
(l) 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.
(mk) 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 funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Ropes & Xxxx LLP, counsel for the Underwriters, at Xxx 0000 Xxxxxx Xxxxxx xxx Xxxxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
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 settlement date pursuant to Section 3 hereofDate, 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 threatenedthreatened by, the Commission.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx furnished to the Representatives the opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representatives, in form and substance satisfactory to each of the form attached as Exhibit A heretoRepresentatives and their counsel.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Winston & Xxxx Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeDate, with respect to the issuance and sale of the SecuritiesPurchased Bonds, the Mortgage, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representative 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, as well as each electronic road show used in connection with to the offering of the Securities, 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 Effectmaterial 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 Company shall have furnished to On the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated date hereof and on 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 Xxxxxxxxx PricewaterhouseCoopers LLP to have furnished furnish to the Representative, 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 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 October 24, 2013 (inception) to November 20, 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;
(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 (f) include any supplement thereto at the date of the letterRepresentatives.
(gf) Subsequent to the Execution Time ordate 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 (fe) of this Section 6 5 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business or properties of the CompanyCompany 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 RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the public offering or delivery of the Securities Purchased Bonds 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 Purchased Bonds shall be rated A3 (stable) by Xxxxx'x Investors Service, Inc. and A- (stable) 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 Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and or certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriterstheir 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx counsel for the Company, at Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters00 Xxxxx Xxxxxxxx Xxxxxx, at Xxx Xxxxxx XxxxXxxxx 0000, Xxx XxxxXxxxxxx, Xxx Xxxx, Xxxxxxxx 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder 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); any material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement Statement, Preliminary Prospectus, Prospectus, Issuer Free Writing Prospectus or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the SEC.
(b) The Company shall have requested and caused Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx Xxxx and Xxxx LLP, counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion, dated the Closing Date and addressed to the Representative Representatives, substantially in form and substance satisfactory to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Company shall have requested and caused Proskauer Rose LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form and substance satisfactory to the Representatives.
(d) The Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative 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.
(de) The Company shall have furnished to the Representative 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 ProspectusStatement, the Disclosure Package, 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 or incorporated by reference into the Statutory Prospectus Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or 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 Xxxxxxxxx PricewaterhouseCoopers LLP to have furnished to the RepresentativeRepresentatives, 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 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 October 24, 2013 (inception) to November 20, 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;
(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 (f) include any supplement thereto at the date of the letterRepresentatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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, the Disclosure Package 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 RepresentativeRepresentatives, 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 Prospectus (exclusive of any amendment or supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) 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 by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the transactions contemplated herebyExchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Securities shall be duly listed subject to notice of issuance and authorized for trading on the NASDAQ Capital Nasdaq Global Select Market, and satisfactory evidence of which such actions shall have been provided to the RepresentativeRepresentatives.
(k) On At or before the Effective Execution Time, the Company shall have furnished to the Representatives a lock-up agreement in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the Company.
(l) At or before the Execution Time, the Selling Stockholder shall have furnished to the Representatives a Lock-Up Agreement provided that the term of such Lock-Up Agreement entered into by the Selling Stockholder shall be for a period of 45 days after the date of this Agreement.
(m) The Representatives shall have received from the principal financial officer of the Company a certificate, dated as of such Closing Date, in form and substance satisfactory to the Representatives.
(n) The Selling Stockholder shall have furnished or caused to be furnished to the Representatives at such Closing Date a certificate of an officer of the Selling Stockholder, satisfactory to the Representatives as to the accuracy of the representations and warranties of the Selling Stockholder at and as of such Closing Date, as to the performance by the Selling Stockholder of all of its obligations hereunder to be performed at or prior to such Closing Date, as to such other matters as the Representatives may reasonably request.
(o) The counsel for the Selling Stockholder, as indicated in Schedule II hereto, shall have furnished to the Representatives its written opinion with respect to the Selling Stockholder for whom they are acting as counsel, dated such Closing Date, in form and substance satisfactory to the Representatives.
(p) At or prior to each Closing Date, the Company shall have delivered furnished to the Representative executed copies of Representatives such further information, certificates and documents as 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedRepresentatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxx LLP, counsel for the Underwriters, at Xxx 00 Xxxxxx XxxxXxxxx, Xxx XxxxNew York, Xxx Xxxx, 00000, unless otherwise indicated hereinNew York 10001, on the Closing Date.
Appears in 1 contract
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 settlement date pursuant to Section 3 hereofDate, 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 threatenedthreatened 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 Xxxxxxxxx Xxxxxxx LLPDeputy General Counsel of Xcel Energy Inc., substantially in the form included as Exhibit A hereto; and
(ii) Xxxxx Day, Chicago, Illinois, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative substantially in the form attached included as Exhibit A B hereto.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, opinions dated the Closing Date and addressed to the 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 such matters as the Representative 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 Representative 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 ProspectusStatement, 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, 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 Effectmaterial 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 furnished to received letters from Deloitte & Touche LLP, independent public accountants for the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, Company (dated the date of this Agreement and 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 Commissionrespectively, 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 Xxxxxxxxx to have furnished to the 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 Representative, confirming Representatives) 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 October 24thereunder, 2013 (inception) to November 20, 2013, 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 (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 CompanyCompany 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; and
(iii) statements as have found such information and percentages to such other matters incident to be in agreement with the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (f) include any supplement thereto at the date relevant accounting and financial information of the letterCompany referred to in such letter in the description of the procedures performed by them.
(gf) 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 (fe) of this Section 6 7 which is so material and adverse as to make 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 Pricing Disclosure Package.
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Debt Securities 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 securities solely as a result of downgrades of ratings of any third parties) and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Debt Securities or 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 securities solely as a result of any such announcement with respect to third parties insuring such debt securities).
(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 general affairs, management, business, financial conditionposition, earningsstockholder’s equity, business results of operations or properties 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 Representative, 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 Debt Securities as 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.
(hi) 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 Debt Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Debt Securities.
(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 Representative Representatives such further other customary information, certificates and documents as the Representative they may reasonably request.
(il) 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 Debt Securities, and the underwriting or other arrangements of Representatives shall have received counterparts, conformed as executed thereof, and the transactions contemplated hereby.
(j) The Debt 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 Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued as of Company and authenticated by the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatenedTrustee. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriterstheir 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, 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 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 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 Xxxxxxxxx Xxxxx Xxxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Company shall have requested and caused Walkers, 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 reasonably acceptable to the Representative.
(d) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the 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).
. Credit Suisse Securities (eUSA) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the CompanyLLC [•], 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.2021
(f) The Company shall have requested and caused Xxxxxxxxx BDO USA, LLP to have furnished to the 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 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 October 24from March 3, 2013 2021 (date of inception) through [•], 2021, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 a portion of the purchase price for the Private Placement Warrants to be funded deposited into the Trust Account.. Credit Suisse Securities (USA) LLC [•], 2021
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 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 Xxxxxxxxx Xxxxxxx LLPXxxxxx & Xxxxxx L.L.P, counsel for the Company, to have furnished to the Representative Representatives its opinions and negative assurance letter, each, dated the Closing Date or settlement date (as applicable) and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A hereto.Representatives. #94037058v3
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each, dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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 DateDate 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 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 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 DateDate 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 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 Xxxxxxxxx WithumSmith to have furnished to the RepresentativeRepresentatives, at the Execution Time and at the Closing DateDate or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing DateDate or settlement date (as applicable), in form and substance satisfactory to the RepresentativeRepresentatives, 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 October 24from December 4, 2013 2020 (inception) through December 11, 2020, provided, however, that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date or settlement date, 2013as applicable, and stating in effect that:: #94037058v3
(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 (f(e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (f(e) of this Section 6 6 or (iii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing DateDate or settlement date (as applicable), the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) 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 Representative.Representatives. #94037058v3
(kj) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Insider Letter, the Registration Rights Agreement and each of the Insider LettersAdministrative Support Agreement.
(lk) 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[Intentionally omitted.]
(ml) At least one Business Day prior to the Closing DateDate or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be funded deposited into the Trust Account.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(ii) hereof shall have been issued as of the Closing DateDate or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP., counsel for the Underwriters, at Xxx Xxxxxx Xxxx450 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Samples: Underwriting Agreement (Decarbonization Plus 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 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 Xxxxxxxxx Xxxxxxx Ellenoff Xxxxxxxx & Schole LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Proskauer Rose LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate signed by the Chief Financial 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 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.
(e) The Company shall have furnished to the 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 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 Xxxxxxxxx Xxxxxx to have furnished to the Representative, 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 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 October 24from January 4, 2013 2021 (date of inception) through [·], provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (fg) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Datedate hereof, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Founders’ Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Insider Letters, the Administrative Services Agreement and each of the Insider LettersRegistration Rights Agreement.
(l) 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 DateDate or the settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be funded deposited into the Trust AccountAccount 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.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Proskauer Rose LLP, counsel for the Underwriters, at Xxx Xxxxxx XxxxXxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Industrial Tech Acquisitions 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 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 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 Xxxxxxxxx Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions their opinion, dated the Closing Date and addressed to the Representative Representative, in the form attached hereto as Exhibit A hereto.B.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Statutory Preliminary Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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 signer of such certificate have has carefully examined the Registration Statement each Statement, the Preliminary Prospectus, the Prospectus and Prospectus, any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, 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 Effectmaterial 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 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 Xxxxxxxxx Xxxxxx LLP to have furnished to the 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 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 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 October 24, 2013 (inception) to November 20, 2013Exchange 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 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 rules and regulations adopted by the Commission;
(ii) on the basis of a limited review, which included a reading of the latest unaudited financial statements made available by the Company for the [·]-month period ended [·], 2006, and as at [·], 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 stockholders, directors and various committees of the board of directors; 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 [·], 2006, nothing came to their attention which caused them to believe that:
(1) 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 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 and the Prospectus;
(2) with respect to the period subsequent to [·], 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 or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the [·], 2006 balance sheet included in the Registration Statement and the Prospectus, or for the period from inception to such specified date there were any decreases in net loss or loss before income taxes (benefit) or 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, 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 Statement 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any material adverse change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), 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 Preliminary 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 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 Preliminary Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(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.
(jh) The Securities shall be Units, the Warrants and the Common Stock have been duly listed subject to notice of issuance listed, and admitted and authorized for trading, on the NASDAQ Capital MarketAmerican Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representative; and trading in the Units, Warrants and Common Stock shall not have been suspended by the Commission.
(ki) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representative executed copies a letter substantially in the form of Exhibit A hereto from each officer, director and initial stockholder of the Company addressed to the Representative.
(j) As of the Closing Date, the Trust Agreement, the Warrant Agreement, the Founder’s Sponsor Warrant Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof Letters shall have been issued as duly executed by the parties thereto. For purposes of this Section 6(j), “Insider Letters” refers to the letter agreements entered into by and between the Company and each of Marathon Founders, LLC, Marathon Investors, LLC, each other initial shareholder and each officer and director of the Closing DateCompany, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any a form of the conditions specified in this Section 6 shall not have been fulfilled when and which is filed as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance Exhibit 10.1 to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing DateRegistration Statement.
Appears in 1 contract
Samples: Underwriting Agreement (Marathon 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 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 Xxxxxxxxx Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Company shall have requested and caused Xxxxxx and Calder, 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 reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Akin Gump Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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, 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 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 Xxxxxxxxx Withum to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24[•], 2013 2017 (inception) through [•], 2017, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativeRepresentatives.
(k) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the each Founder’s Purchase Agreement, the Securities Assignment AgreementForward Purchase Agreements, the Warrant Subscription Agreement, the Escrow Insider Letter, the Registration Rights Agreement and each of the Insider LettersServices Agreement.
(l) 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 Sponsors shall have caused the purchase price for the Private Placement Warrants to be funded deposited into the Trust Account.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxx Xxxxx Xxxxxx, Xxx XxxxXxxxxxx, Xxx XxxxXxxxxxxxxx 00000, 00000Attention: Xxxxx X. Xxxx and Xxxxxxxx Xx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing 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 Xxxxxxxxx Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx White & Xxxx Case LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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 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 Xxxxxxxxx Withum to have furnished to the 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 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 October 24December 29, 2013 2020 (date of inception) through [·], 2021, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNYSE, satisfactory evidence of which shall have been provided to the Representative.
(kj) On or prior to the Effective Closing Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Private Placement Warrants Purchase Agreement, the Warrant Subscription AgreementInsider Letter, the Escrow Registration and Shareholder Rights Agreement and each of the Insider LettersAdministrative Services Agreement.
(l) 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.
(mk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused $3,500,000 of the purchase price for the Private Placement Warrants to be funded deposited into the Trust AccountAccount and the remaining $2,000,000 to be paid to the Company.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx White & Xxxx Case LLP, counsel for the Underwriters, at Xxx 0000 Xxxxxx Xxxxxx xxx Xxxxxxxx, Xxx Xxxx, Xxx XxxxXX 00000, 00000Attention: Xxxx Xxxxxxxxxx and Xxxxxxx Xxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject subject, in the discretion of the Underwriters, 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 settlement date pursuant to Section 3 hereofDate, 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 Underwriters; 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 threatenedthreatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters’ reasonable satisfaction.
(b) The Company Underwriters shall have requested be furnished with opinion letters, dated the Closing Date, of [______], [______] of the Company, that address substantially the matters set forth in Exhibit A, and caused Xxxxxxxxx Xxxxxxx LLP[______], counsel for the Company, to have furnished to that address substantially the Representative its opinions dated the Closing Date and addressed to the Representative matters set forth in the form attached as Exhibit A hereto.B.
(c) The Representative Underwriters shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP[______], counsel for the Underwriters, such opinion or opinions, opinions dated the Closing Date and addressed to the 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 such matters as the Representative Underwriters 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 Representative Underwriters a certificate of the Company, signed by the Chief Executive Officer and the principal financial President or accounting officer any Senior Vice President or 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 ProspectusStatement, 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, 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 Effectmaterial 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 Underwriters shall have furnished to received letters from Deloitte & Touche LLP, independent public accountants for the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, Company (dated the date of this Agreement and 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 Commissionrespectively, 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 Xxxxxxxxx to have furnished to the 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 Representative, confirming Underwriters) 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 October 24thereunder, 2013 (inception) to November 20, 2013, 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;
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 shareholders 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)(1) set forth 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 stockholders’ equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the 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 Underwriters; 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 CompanyCompany 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; and
(iii) statements as have found such information and percentages to such other matters incident to be in agreement with the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (f) include any supplement thereto at the date relevant accounting and financial information of the letterCompany referred to in such letter in the description of the procedures performed by them.
(gf) 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 (fe) of this Section 6 7 which makes it impractical or inadvisable in the judgment of the Underwriters to proceed with the public offering or the delivery of the Securities 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 Securities 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 changeno such organization shall have publicly announced that it has under surveillance or review, or any development involving a prospective changehas changed its outlook with respect to, in or affecting the financial condition, earnings, business or properties its rating of the CompanySecurities 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 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, financial or otherwise, 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 Representative, 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 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.
(hi) Prior No Underwriter 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 Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(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 Representative Underwriters such further other customary information, certificates and documents as the Representative they may reasonably request.
(il) 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 Securities, and the underwriting or other arrangements of Underwriters shall have received counterparts, conformed as executed thereof, and the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued as of Company and authenticated by the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatenedTrustee. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Underwriters and counsel for the Underwriterstheir 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 RepresentativeUnderwriters. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties in all material respects (to the extent any such representation or warranty is not otherwise qualified therein) on the part of the Company contained herein as of the Execution Time, Applicable Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, 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); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx Xxxxx Lovells US LLP, counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion, dated the Closing Date and addressed to the Representative Representatives, to the effect set forth in the form attached as Exhibit A hereto.A.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLPXxxxx LPP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representative Representatives a certificate of the Company, signed by the Chief Executive Officer President or any Vice President and the principal financial or chief financial, chief accounting officer or treasurer of the Company, dated the Closing Date, to the effect that (i) since the signers respective dates as of such certificate have carefully examined which information is given in the Registration Statement each Preliminary and the Prospectus or since the date of this Agreement, there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, consolidated financial position or consolidated results of operations of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, otherwise than as set forth or contemplated in the 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:
(iii) the other representations and warranties of the Company contained in this Agreement Section 1 hereof are true and correct on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date and date of such certificate, (iii) the Company has performed or 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;
date of such certificate, and (iiiv) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and and, to their knowledge, no proceedings for that purpose have been instituted or, to initiated or threatened by 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)Commission.
(e) The Company PricewaterhouseCoopers LLP 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 Xxxxxxxxx to have furnished to the RepresentativeRepresentatives, at the Execution Applicable Time and at the Closing Date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Applicable Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that is independent Representatives containing statements and information of the type customarily 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 October 24, 2013 (inception) to November 20, 2013, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on information contained or incorporated 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) 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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given reference 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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)Prospectus.
(hf) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ig) FINRA shall not have raised any objection with respect Subsequent to the fairness or reasonableness execution and delivery of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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 this Agreement and each of the Insider Letters.
(l) 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, there shall not have been any decrease in the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale rating of any of the Units Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any jurisdiction designated by such rating or of a possible change in any such rating that does not indicate the Representative pursuant to Section 5(kk) hereof shall have been issued as direction of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatenedpossible change. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not required to be reasonably satisfactory in form and substance to the Representative and counsel for the Underwritersfulfilled, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxx LLP, counsel for the Underwriters, at Xxx 0000 Xxxxxx Xxxxxx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, unless otherwise indicated herein, on the Closing DateDate or by facsimile or electronic mail (including pdf or any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any document so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Appears in 1 contract
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, Certificates pursuant to this Agreement shall be subject in their discretion to the accuracy of and compliance with the representations and warranties on the part of the Company contained herein as of the Execution Time, date hereof and as of the Closing Date and any settlement date pursuant to Section 3 hereofTime, to the accuracy of the statements of the Company Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) At the Closing Time, you shall have received:
(i) An opinion, dated the date of the Closing Time, of Xxxxxx Xxxxxxxx, Senior Vice President, General Counsel and Secretary of the Company, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit A hereto.
(ii) An opinion and a separate negative assurance letter, each dated the date of the Closing Time, of Debevoise & Xxxxxxxx LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit B hereto.
(iii) An opinion, dated the date of the Closing Time, of Xxxxxx Xxxxx LLP, counsel for Wilmington Trust, as the Trustee, Subordination Agent, Loan Trustee and Paying Agent, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit C hereto.
(iv) An opinion, dated the date of the Closing Time, of Xxxxxx Xxxxx LLP, counsel for Wilmington Trust Company, as the Escrow Agent, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit D hereto.
(v) An opinion, dated the date of the Closing Time, of Winston & Xxxxxx LLP, counsel for the Liquidity Provider and the Depositary, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit E hereto.
(vi) An opinion, dated the date of the Closing Time, of Xxxxxx Xxxxxxxxxxx, Head of Structured Finance Department within the Legal Department of the Liquidity Provider, as delegate of Christian Le Hir, Chief Legal Officer for the Liquidity Provider and the Depositary, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit F hereto.
(vii) An opinion, dated the date of the Closing Time, from White & Case LLP, counsel for the Underwriters, with respect to the issuance and sale of the Certificates, the Time of Sale Prospectus, the Prospectus and other related matters as you may reasonably require.
(b) The ProspectusProspectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 3(a) hereof; the final term sheet contemplated by Section 3(b) hereof, and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed in with the manner and Commission within the applicable time period required periods prescribed for such filings by Rule 424(b)433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, counsel for the Companyinitiated or, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate knowledge of the Company, signed threatened by the Chief Executive Officer Commission and the principal financial or accounting officer no notice of objection of the Company, dated the Closing Date, Commission 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 use of the Registration Statement or any notice objecting post-effective amendment thereto pursuant to its use has been issued and no proceedings for that purpose Rule 401(g)(2) under the Securities Act shall have been instituted received by the Company; no stop order suspending or preventing the use of the Prospectus or any issuer free writing prospectus shall have been initiated 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 knowledge 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 threatened 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 all requests for additional information by the Commission shall have been complied with to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateyour reasonable satisfaction.
(fc) The Company shall have requested and caused Xxxxxxxxx to have furnished to the 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 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 October 24, 2013 (inception) to November 20, 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;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial On 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 (f) include any supplement thereto at after the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)hereof, there shall not have been (i) any change or decrease decrease, specified in the letter or letters referred to in paragraph (fd) of this Section 6 4, or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) Company the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representativeyour reasonable judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities Certificates as contemplated by the Registration Statement (exclusive Time of any amendment thereof), the Statutory Sale Prospectus and the Prospectus (exclusive Prospectus; and you shall have received a certificate of any supplement thereto).
(h) Prior the President, a Senior Vice President or a Vice President of the Company, dated as of the date of the Closing Time, to the Closing Dateeffect that (i) there has been no such material adverse change, in the case of clause (ii) above, in the Company, (ii) that the representations and warranties in Section 1 hereof and also the representations and warranties of the Company shall have furnished contained in the Operative Documents are true and correct with the same force and effect as though made at such Closing Time, and as to the Representative such further information, certificates and documents other matters as the Representative you may reasonably request.
(id) FINRA At the time of the execution of this Agreement and also at the Closing Time, Ernst & Young LLP shall not have raised any objection furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you, 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 the Underwriters with respect to the fairness or reasonableness financial statements and certain financial information contained in the Time of Sale Prospectus and the underwriting or other arrangements of the transactions contemplated herebyProspectus.
(je) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which Company shall have been provided furnished to you and your counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the Representativepurpose of enabling such counsel to pass upon the matters to be covered by the opinions required to be delivered under subsection (a)(vii) of this Section 4 and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company theretofore to be performed, or the compliance with any of the conditions herein contained.
(kf) On Each of the Effective DateAppraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company shall have delivered to and dated the Representative executed copies date of the Trust AgreementClosing Time, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Insider LettersCompany or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, Underwriter, trustee, partner, director or person performing similar functions.
(lg) On Subsequent to the Execution Date, the Company shall have caused to be duly executed execution and delivered a letter from each Participant, substantially in the form delivery of Exhibit C hereto.
(m) At least one Business Day this Agreement and prior to the Closing DateTime, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the Sponsor direction of the possible change, in the rating accorded the Company or any of the securities of the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act. All such opinions, certificates, letters and documents shall have caused the purchase price for the Private Placement Warrants be deemed to be funded into in compliance with the Trust Account.
(n) No order preventing or suspending the sale of the Units provisions hereof only if they are in any jurisdiction designated by the Representative pursuant all respects reasonably satisfactory to Section 5(kk) hereof shall have been issued as of the Closing Date, you and no proceedings for that purpose shall have been instituted or shall have been threatenedyour counsel. If any of the conditions condition specified in this Section 6 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, other than by reason of any default by any Underwriter, such failure to fulfill a condition may be waived by you, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not may be reasonably satisfactory in form and substance terminated by you by notice to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or Company at any time at or prior to, to the Closing Date by the Representative. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in writing or by telephone or facsimile confirmed Sections 5, 7 and 10 hereof, which provisions shall remain in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase accept delivery of and pay for the Underwritten Securities and Bonds on the Option Securities, as the case may be, Closing Date shall be subject subject, at the option of the Underwriters, to the accuracy in all material respects of the representations and warranties on the part of the Company City contained herein herein, as of the Execution Time, date hereof and as of the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy in all material respects of the statements of the Company officers and other officials of the City made in any certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Company City of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The ProspectusAt the Closing Date, the Formation Documents and the District Documents shall be in full force and effect, and any supplement thereto, shall not have been filed amended, modified or supplemented, except as may have been agreed to in writing by the manner Representative, 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 there shall have been issued taken in connection therewith, with the issuance of the Bonds and no proceedings with the transactions contemplated thereby and by this Purchase Agreement, all such actions as, in the opinion of Xxxxx Xxxx, A Professional Corporation (“Xxxxx Xxxx”), Bond Counsel for that purpose the City, and Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, a Professional Corporation (“Stradling”), counsel to the Underwriters, shall have been instituted or threatened.be necessary and appropriate;
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLPinformation contained in the Official Statement will, counsel for the Company, to have furnished to the Representative its opinions dated as of the Closing Date and addressed as of the date of any supplement or amendment thereto pursuant to Section 2(g) hereof, be true and correct in all material respects and will not, as of the Representative Closing Date or as of the date of any supplement or amendment thereto pursuant to Section 2(g) hereof, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the form attached as Exhibit A hereto.light of the circumstances under which they were made, not misleading;
(c) The Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the initial offering prices set forth in the Official Statement shall not have been materially adversely affected, in the judgment of the Representative (evidenced by a written notice to the City terminating the obligation of the Underwriters to accept delivery of and pay for the Bonds), by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest that would be received by the owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
(2) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission (the “SEC”), or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds are not exempt from registration under or other requirements of the Securities Act of 1933, as amended, or that the Fiscal Agent Agreement is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(3) any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the City or the District, their property, income or securities (or interest thereon), the validity or enforceability of the Special Tax as contemplated by the Formation Documents, the District Documents or the Official Statement;
(4) any event occurring, or information becoming known, which, in the judgment of the Representative, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement or the Official Statement, or results in the Preliminary Official Statement or the Official Statement containing any untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(5) the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of, or the financial community in, the United States which, in the judgment of the Representative, makes it impracticable or inadvisable to proceed with the offering or the delivery of the Bonds on the terms and in the manner contemplated in the Preliminary Official Statement or the Official Statement;
(6) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction that, in the Representative’s reasonable judgment, makes it impracticable for the Underwriters to market the Bonds or enforce contracts for the sale of the Bonds;
(7) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriters;
(8) the entry of an order by a court of competent jurisdiction which enjoins or restrains the City from issuing permits, licenses or entitlements within the District or which order, in the reasonable opinion of the Representative, otherwise materially and adversely affects proposed development of property within the District;
(9) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
(10) there shall have been any material adverse change in the affairs of the City that in the Representative’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriters to enforce contracts for the sale of the Bonds;
(11) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order;
(12) a stop order, release, regulation, or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made to the effect that the issuance, offering, or sale of the Bonds, including all the underlying obligations as contemplated hereby or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act, and the Trust Indenture Act of 1939, as amended; or
(13) filing of or threat of litigation of the type described in Section 2(i) hereof.
(d) On the Closing Date, the Underwriters shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLPcounterpart originals or certified copies of the following documents, counsel in each case satisfactory in form and substance to the Underwriter:
(1) The Formation Documents and the District Documents, together with a certificate dated as of the Closing Date of the City Clerk of the City to the effect that each Formation Document is a true, correct and complete copy of the one duly adopted by the City Council;
(2) The Official Statement;
(3) An approving opinion for the Underwriters, such opinion or opinionsBonds, dated the Closing Date and addressed to the RepresentativeCity, with respect of Xxxxx Xxxx, Bond Counsel for the City, in the form attached 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 Preliminary Official Statement as the Representative may reasonably requireAppendix E, and the Company shall have furnished to an unqualified letter of 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 Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Companycounsel, dated the Closing DateDate and addressed to the Underwriters, to the effect that such approving opinion addressed to the signers City may be relied upon by the Underwriters to the same extent as if such opinion was addressed to it;
(4) A supplemental opinion, dated the Closing Date and addressed to the Underwriters, of such certificate have carefully examined Xxxxx Xxxx, Bond Counsel for the Registration Statement each Preliminary ProspectusCity, to the effect that (i) this Purchase Agreement, the Prospectus Irrevocable Escrow Instructions, and any amendment or supplement the Continuing Disclosure Agreement have been duly authorized, executed and delivered by the City, and, assuming such agreements constitute a valid and binding obligation of the other respective parties thereto, constitute the legally valid and binding agreements of the City for the District enforceable in accordance with their respective terms, except as well enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and may be subject to general principles of equity (regardless of whether such enforceability is considered in equity or at law); (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as each electronic road show used amended, and the Fiscal Agent Agreement is exempt from qualification under the Trust Indenture Act of 1939, as amended; and (iii) the information contained in the Official Statement on the cover and under the captions “INTRODUCTION,” “THE BONDS” (other than information relating to DTC and its Book-Entry Only System), “SECURITY FOR THE BONDS,” “LEGAL MATTERS – Tax Exemption” and Appendices C and E thereof is accurate, insofar as such information purports to summarize or replicate certain provisions of the Law, the Bonds and the Fiscal Agent Agreement and the exclusion from gross income for federal income tax purposes and exemption from State of California personal income taxes of interest on the Bonds;
(5) An opinion, dated the Closing Date and addressed to the Underwriters, of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, a Professional Corporation, counsel for the Underwriters, to the effect that (i) the Bonds are exempt from the registration requirements of the Securities Act of 1933, as amended, and the Fiscal Agent Agreement is exempt from qualification under the Trust Indenture Act of 1939, as amended; and (ii) without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, but on the basis of their participation in conferences with representatives of the City, Bond Counsel, representatives of the Underwriters, and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Official Statement as of its date and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (except that no opinion or belief need to be expressed as to any information relating to The Depository Trust Company, or any information relating to CUSIP numbers, or with respect to any financial or statistical data or forecasts or estimates or assumptions or any expressions of opinion or assessed valuations);
(6) A certificate or certificates, dated the Closing Date and signed by an authorized officer of the City, ratifying the use and distribution by the Underwriters of the Preliminary Official Statement and the Official Statement in connection with the offering and sale of the Securities, Bonds; and this Agreement and that:
certifying that (i) the representations and warranties of the Company City contained in this Agreement Section 2 hereof 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; (ii) to the best of his or her knowledge, no event has occurred since the date of the Official Statement affecting the matters contained therein which should be disclosed in the Official Statement for the purposes for which it is to be used in order to make the statements and information contained in the Official Statement not misleading in any material respect, and the Company Bonds, the Formation Documents and the District Documents conform as to form and tenor to the descriptions thereof contained in the Official Statement; and (iii) the City has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Formation Documents, the District Documents and the Official Statement at or prior to the Closing Date;
(ii7) 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 CompanyAn opinion, dated the Closing DateDate and addressed to the Underwriters, certifying of the City Attorney, to the effect that (i) that to its current actual knowledge and except as disclosed in the Amended and Restated Certificate of Incorporation and the Bylaws of the Company are true and completeOfficial Statement, have not been modified and are in full force and effectno action, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modifiedsuit, (iii) copies of all correspondence between the Company proceeding, inquiry 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 Xxxxxxxxx to have furnished to the Representativeinvestigation, at the Execution Time and at the Closing Datelaw or in equity, lettersbefore or by any court, dated respectively as of the Execution Time and as of the Closing Dateregulatory agency, in form and substance satisfactory to the Representative, confirming that they are a registered public accounting firm that board or body is independent pending with respect to which the Company within City has been served with process or is known to such counsel to be threatened, as to which the meaning City is or would be a party, which would materially adversely affect the ability of the Act City or the District to perform their obligations under the Bonds, the Formation Documents or the District Documents, or which seeks to restrain or enjoin the issuance, sale and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review delivery of the audited financial statements Bonds or exclusion from gross income for federal income tax purposes or State of California personal income taxes of interest on the Bonds, or the application of the Company for proceeds thereof in accordance with the period October 24Fiscal Agent Agreement, 2013 (inception) or the collection or application of the Special Tax to November 20pay the principal of and interest on the Bonds, 2013, and stating or which in effect that:
(i) in their opinion any way contests or affects the audited financial statements and financial statement schedules included in validity or enforceability of the Registration StatementBonds, the Statutory Prospectus and Formation Documents or the Prospectus and reported on by them comply as to form in all material respects with District Documents or the applicable accounting requirements accuracy of the Act and the related rules and regulations adopted by the Commission;
(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 Official 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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business or properties action 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 Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as City contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of said documents or the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any development of property within the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.District;
Appears in 1 contract
Samples: Bond Purchase Agreement
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 contained herein as of the Execution Initial Sale Time, the Closing Date and any settlement date pursuant to Section 3 hereofthe Option Closing Date, as the case may be, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder hereunder, and to the following additional conditions:
(a) The Prospectus, 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 Shares shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission;
(b) The Company Representatives shall have requested and caused Xxxxxxxxx Xxxxxxx LLPreceived from Xxxxxx & Xxxxxx L.L.P., counsel for the Company, to have furnished to the Representative its opinions opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representative Representatives, to the effect set forth in the form attached as Exhibit A Annex I hereto.;
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx the General Counsel to the Company his opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representatives, to the effect set forth in Annex II hereto;
(d) The Representatives shall have received from Xxxxx & Xxxx LLPXxxxx L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives 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 Representative Representatives a certificate of the Company, signed in their representative capacities by the Chief Executive Officer or President and the principal financial or accounting officer Chief Financial Officer of the Company, dated the Closing Date or the Option Closing Date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement 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 in all material respects on and as of the Closing Date or the Option Closing Date, as the case may be, with the same effect as if made on the Closing Date or the Option Closing Date, as the case may be, and the Company has 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 or the Option Closing Date, as the case may be;
(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 Shares has been issued and no proceedings for that purpose have been instituted orbeen, to the Company’s knowledge, threatenedinstituted or threatened by the Commission; and
(iii) since 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 Effectmaterial adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished Final Prospectus, as amended or supplemented prior to the Representatives a certificate signed by the Secretary Execution Time, 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 described in such certificate shall be attached to such certificate.;
(f) The Company shall have requested and caused Xxxxxxxxx to have furnished to the Representative, at At the Execution Time Time, the Closing Date and at the Option Closing Date, lettersas the case may be, the Representatives shall have received from Ernst & Young LLP a letter or letters dated respectively as of the Execution Time and as of the Closing Datesuch date or dates, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 October 24, 2013 (inception) to November 20, 2013, 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 Commissionany Issuer Free Writing Prospectus;
(iig) they At the Execution Time, the Closing Date and the Option Closing Date, as the case may be, the Representatives shall have performed certain other specified procedures as received from NSAI a result of which they determined that certain information of letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Underwriters covering the matters described in Annex III;
(h) The Representatives shall have received an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from agreement for the general accounting records benefit of the Company) Underwriters in the form set forth as Annex IV hereto, signed by each director and executive officer listed in the Registration Company’s Proxy 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 filed with the accounting records of Commission on April 7, 2016 (each a “Lock-Up Agreement”), other than any such director or officer who has resigned before the CompanyExecution Time, excluding and each such Lock-Up Agreement shall be in full force and effect on the Closing Date and any questions of legal interpretation; andOption Closing Date, as the case may be;
(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 (f) include any supplement thereto at the date of the letter.
(gi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)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 (f) of this Section 6 5 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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 RepresentativeRepresentatives, 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)Statement, the Statutory Final Prospectus and the Prospectus (exclusive of any supplement thereto).Issuer Free Writing Prospectus;
(hj) The Shares shall have been approved for listing on the New York Stock Exchange, subject only to notice of issuance at or prior to the Closing Date or the Option Closing Date, as the case may be; and
(k) Prior to the Closing Date or the Option Closing Date, as the case may be, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative and counsel for the UnderwritersRepresentatives, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder. The documents required to be delivered by this Section 6 5 shall be delivered to the offices of Xxxxxx & Xxxxxx L.L.P. at the office of Akin Gump Xxxxxxx Xxxxx & 0000 Xxxx LLPXxxxxx, counsel for the UnderwritersDallas, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, Texas 75201 on the Closing Date and any Option Closing Date, as applicable, or such other place as the Representatives shall so instruct.
Appears in 1 contract
Samples: Underwriting Agreement (Pioneer Natural Resources Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Shares to be delivered at each Closing Date shall be subject subject, in the discretion of the Underwriters, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the date hereof and such Closing Date and any settlement date pursuant to Section 3 hereofDate, 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 Shares 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 threatenedthreatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters’ reasonable satisfaction.
(b) The Company Underwriters shall have requested be furnished with opinions, dated such Closing Date, of Gxxx X. Xxxxxxx, Vice President and caused Xxxxxxxxx Xxxxxxx LLP, counsel for General Counsel of the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative substantially in the form attached included as Exhibit A hereto.A.
(c) The Representative Underwriters shall have received from Akin Gump Xxxxxxx Xxxxx Jxxxx, Day, Rxxxxx & Xxxx LLPPxxxx, Chicago, Illinois, counsel for the Underwriters, such opinion or opinions, opinions dated the such Closing Date and addressed to the Representative, with respect to the issuance and sale incorporation of the SecuritiesCompany, this Agreement, the validity of the Shares to be delivered at such Closing Date, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative Underwriters 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 Representative Underwriters 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 such 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 ProspectusStatement, 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 such Closing Date with the same effect as if made on the such 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 such Closing Date;; and
(ii) there has been no stop order suspending material adverse change in the effectiveness condition of the Company and its subsidiaries taken as a whole, 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 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 Underwriters shall have furnished to received a letter from Axxxxx Axxxxxxx LLP, independent public accountant for the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, Company (dated the date of this Agreement and each 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 Commissionrespectively, 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 Xxxxxxxxx to have furnished to the 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 Representative, confirming Underwriters) 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 consolidated 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 October 24, 2013 (inception) to November 20, 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 Exchange Act and the related published rules and regulations adopted by of the Commission;
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 and its consolidated subsidiaries, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the Shareholders, of the Company and its subsidiaries since the date of the most recent audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries 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: (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 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; and (2) 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 and its consolidated subsidiaries 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, net income, or earnings per share of Common Stock 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 Underwriters; (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) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them; and
and (iiiv) statements as to such other on the basis of a reading of the unaudited pro forma financial information included in the Prospectus, carrying out certain specified procedures that would not necessarily reveal matters incident of significance with respect to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus comments set forth in this paragraph (f) include any supplement thereto at the date e), inquiries of certain officials of the letterCompany who have responsibility for financial and accounting matters and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the unaudited pro forma financial information, nothing came to their attention that caused them to believe that the unaudited pro forma financial information does not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such information.
(gf) 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 (fe) of this Section 6 which makes it impractical or inadvisable in the judgment of Lxxxxx Brothers Inc. on behalf of the Underwriters to proceed with the public offering or the delivery of the Shares 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) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement, and (ii) since the date of this Agreement, neither the Company nor any of its subsidiaries shall 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 its subsidiaries, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial conditionposition, earnings, business stockholders’ equity or properties results of operations of the Company, whether or not arising from transactions in the ordinary course of business, except Company and its subsidiaries 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 Lxxxxx Brothers Inc. on behalf of the Representative, Underwriters so material and adverse as to make it impractical impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated by the Prospectus.
(i) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or on The Nasdaq Stock Market, Inc.’s National Market shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or any other substantial national or international calamity or emergency if, in the judgment of Lxxxxx Brothers Inc. on behalf of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impracticable or inadvisable to proceed with the public offering or delivery of the Securities Shares being delivered on such Closing Date on the terms and in the manner contemplated in the Prospectus or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the Untied States shall be such) as to make it, in the judgment of Lxxxxx Brothers Inc. on behalf of the Underwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Shares being delivered on such Closing Date on the terms and in the manner contemplated by in the Prospectus.
(j) No Underwriter shall have advised the Company that the Registration Statement (exclusive of or Prospectus, or any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any or supplement thereto), contains an untrue statement of fact that in the opinion of counsel for the Underwriters is material or omits to state a fact that 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.
(hk) The Underwriters shall have received executed Lock-up Letter Agreements, in the form of Exhibit B hereto, from the Company’s directors and executive officers.
(l) The Shares to be delivered at such Closing Date shall have been duly approved for listing on the New York and Chicago Stock Exchanges and the Pacific Exchange, subject to official notice of issuance.
(m) Prior to the Closing Date, the Company shall have furnished to the Representative Underwriters such further information, certificates and documents as the Representative they may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Underwriters and counsel for the Underwriterstheir counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the First Closing Date, and with respect to the Option Shares, the Second Closing Date by Lxxxxx Brothers Inc. on behalf of the RepresentativeUnderwriters. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing 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 Xxxxxxxxx Xxxxxxx Ellenoff Xxxxxxxx & Schole LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusGeneral Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representative 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, 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, 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 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 Xxxxxxxxx KPMG to have furnished to the 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 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 October 24from November 20, 2013 2020 (inception) through December 10, 2020, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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; 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) 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 Representative.
(kj) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Private Placement Agreement, the Warrant Subscription AgreementInsider Letter, the Escrow Registration Rights Agreement and each of the Insider LettersAdministrative Support Agreement.
(l) 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.
(mk) 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 funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 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 Akin Gump Xxxxxxx Xxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxx Xxxxxxx, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Xxxxxxxxx Xxxxxxx LLPXxxxxxxx Xxxxxx, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date and addressed to the Representative Representatives, in form and substance reasonably satisfactory to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxxxxx & Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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, 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 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 Xxxxxxxxx Xxxxxx to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24July 15, 2013 2014 (inception) to November 20through September 12, 20132014, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) 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 RepresentativeRepresentatives.
(kj) On the Effective Date, the Company shall have delivered to the Representative Representatives 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, the Registration Rights Agreement and the Administrative Services Agreement.
(l) 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.
(mk) 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 funded wired to the Company and the Company shall direct the escrow agent to deposit such funds into the Trust AccountAccount and to hold such funds in escrow therein.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxxxxx & Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Quinpario Acquisition Corp. 2)
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 settlement date pursuant to Section 3 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 Xxxxxxxxx Xxxxxxx Xxxxxxx, LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, 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 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 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, 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, as well as and each electronic road show used in connection with the offering of the SecuritiesOffering, 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 Xxxxxxxxx Withum to have furnished to the Representative, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the 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 October 24from June 12, 2013 2020 (inception) through June 22, 2020; provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (fSection 7(e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fSection 7(e) of this Section 6 hereof or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 Representative, 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).
(hg) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) The Offered Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(kj) On the Effective Date, the Company shall have delivered to the 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 Insider Letter and each of the Insider LettersRegistration Rights Agreement.
(l) 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.
(mk) At least one Business Day prior to the Closing DateDate or a settlement date, as applicable, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxx Xxxxxxxx LLP, 000 Xxxxx Xxxxxx XxxxXxxxxx, Xxxxxx-Xxxxx Xxxxx, Xxx XxxxXxxxxxx, Xxx XxxxXxxxxxxxxx 00000, 00000Attention: Xxxxx Xxxxx and Xxxxxxxx Xx, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Xxxxxxxxx Xxxxxxx White & Case, LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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 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 Xxxxxxxxx BDO to have furnished to the 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 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 October 24from February 18, 2013 2021 (date of inception) through [●], 2021, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the Representative.
(kj) On the Effective Datedate hereof, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Founders’ Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement Insider Letter and each of the Insider LettersRegistration Rights Agreement.
(l) 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.
(mk) At least one Business Day prior to the Closing Date, the Sponsor Sponsors shall have caused the purchase price for the Private Placement Warrants Portion to be funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Logistics Innovation Technologies 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 and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its 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 shall have 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 New York City time 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, and or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, 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 A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company Selling Stockholder shall have furnished to the Representative a certificate Representatives the opinion of Sidley & Austin, counsel for the Company, signed by the Chief Executive Officer Company and the principal financial or accounting officer of the CompanySelling Stockholder, 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 Company has been duly incorporated and warranties is validly existing as a corporation in good standing under the laws of the Company State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Registration Statement and the Prospectus, to execute and deliver this Agreement are true and correct on and as of to perform 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 obligations to be performed or satisfied at or prior to the Closing Dateby it hereunder;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use this Agreement has been issued duly authorized, executed and no proceedings for that purpose have been instituted or, to delivered by the Company’s knowledge, threatened; and;
(iii) since the date authorized capital stock 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 Company is as set forth in or contemplated the Prospectus under the heading "Capitalization";
(iv) (A) the Securities being sold by the Company have been duly and validly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be fully paid and non-assessable and (B) except as described in the Statutory Prospectus and to the Prospectus (exclusive knowledge of such counsel, there are no outstanding rights, subscriptions, warrants, calls, registration rights, preemptive rights, options or other arrangements of any supplement thereto).kind with respect to the capital stock of the Company;
(ev) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary capital stock of the Company, dated including the Closing DateSecurities, 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 Xxxxxxxxx to have furnished to the 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 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 October 24, 2013 (inception) to November 20, 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 conforms in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given description thereof contained in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus under the caption "Description of Capital Stock and Corporate Charter;" and the certificates for the Securities are in due and proper form;
(exclusive vi) all consents, approvals, authorizations or orders of, or filings with, any court or governmental agency or body required in connection with consummation by the Company of the transactions contemplated in this Agreement have been obtained, except such counsel need express no opinion as to any necessary qualification in connection with the purchase and distribution of the Securities by the Underwriters (A) under the securities or blue sky laws of any supplement thereto)jurisdiction; or (B) with the National Association of Securities Dealers, there shall not have been Inc.;
(ivii) any change or decrease specified in neither the letter or letters referred to in paragraph (f) execution, delivery and performance of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business or properties of Agreement by the Company, whether or not arising from transactions in nor 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 Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated consummation by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(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., will conflict with or result in any breach of, or constitute a default under (or constitute any event which with notice, lapse of time, or both, would constitute a breach of or default under), any provisions of the certificate of incorporation or by- laws of the Company;
(jviii) The Securities shall be duly listed subject to notice the statements in the Registration Statement under the captions "Risk Factors - Antitakeover Matters," "Management - Employment Agreements and -Stock Plans," "Relationship with X.X. Xxxxxxxxx," "Shares Eligible for Future Sale" and "Description of issuance on the NASDAQ Capital MarketStock and Corporate Charter," in each case, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies insofar as such statements constitute summaries of the Trust Agreementlegal matters or documents described therein, fairly summarize in all material respects 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.
(l) On the Execution Date, the Company shall have caused matters purported 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.summarized;
Appears in 1 contract
Samples: Underwriting Agreement (Donnelley Enterprise Solutions 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 Applicable Time, the Closing Date and any settlement date pursuant to Section 3 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 ProspectusRegistration Statement, has become effective and any supplement thereto, have been filed in on the manner and within the time period required by Rule 424(b); and Closing Date no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act, no stop order pursuant to Section 8(d) of the 1933 Act shall have been issued, and no proceedings for that purpose with respect to either shall have been instituted initiated or, to the Company’s knowledge, threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430A Information shall have been filed with the Commission in accordance with Rule 497 (or threateneda post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A).
(b) The Company Company’s General Counsel shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions Representatives his opinion, dated the Closing Date and addressed to the Representative Representatives, substantially in the form attached as set forth in Exhibit A heretoB thereto.
(c) The Representative Company shall have requested, and Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, shall have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit C thereto.
(d) The Company shall have requested, and Vxxxxxx LLP, Maryland counsel for the Company, shall have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit D thereto.
(e) The Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Cxxxxxxx Chance US LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus Supplement (together with any supplement thereto) and other related matters as the Representative 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.
(df) The Company shall have furnished to the Representative 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 ProspectusStatement, the Disclosure Package, the Prospectus Supplement 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 in the Statutory Prospectus Disclosure Package and the Prospectus Supplement (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus Supplement (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.
(fg) The Company shall have requested and caused Xxxxxxxxx BDO Sxxxxxx, LLP to have furnished to the RepresentativeRepresentatives, at the Execution Applicable Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Applicable Time and as of the Closing Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the 1933 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 unaudited interim financial statements information of the Company for the three-month period October 24ended December 31, 2013 (inception) to November 202008, 2013and as at December 31, 2008, 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 and pro forma financial statements included or incorporated by reference in the Registration Statement, the Statutory Preliminary Prospectus and the Prospectus Supplement and reported on by them comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the three-month period ended December 31, 2008, and as at December 31, 2008 included in the Registration Statement, the Preliminary Prospectus and the Prospectus Supplement; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and audit, nominating and corporate governance committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to June 30, 2008, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus Supplement do not comply as to form with applicable accounting requirements of the 1933 Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus Supplement;
(2) with respect to the period subsequent to December 31, 2008, there were any changes, at a specified date not more than five days prior to the date of the letter, in the credit facility payable or payable for securities purchased or decreases in the net assets as compared with the amounts shown on the December 31, 2008 consolidated statement of assets and liabilities included in the Registration Statement, the Preliminary Prospectus and the Prospectus Supplement, or for the period from January 1, 2009 to such specified date there were any decreases, as compared with the corresponding period in the preceding quarter in total investment income, net investment income or earnings per common share 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;
(3) the information included in the Registration Statement, the Preliminary Prospectus and Prospectus Supplement in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the CompanyCompany and its subsidiaries) set forth in the Registration Statement, the Statutory Preliminary Prospectus and the ProspectusProspectus Supplement and in Exhibit 12 to the Registration Statement, including the information set forth under the captions caption “Dilution” and “CapitalizationSelected Condensed Financial Data” in the Statutory Preliminary 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 requestProspectus Supplement. References to the Prospectus Supplement in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of after giving effect to any amendment thereofthereof on or prior to the Applicable Time and to any amendment pursuant to Rule 462(d), the Statutory Prospectus ) and the Prospectus Supplement (exclusive of after giving effect to any amendment or supplement theretothereto on or prior to the Applicable Time or providing Rule 430A Information), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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 Prospectus Supplement (exclusive of after giving effect to any amendment or supplement theretothereto on or prior to the Applicable Time or providing Rule 430A Information) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, 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 after giving effect to any amendment thereofthereof on or prior to the Applicable Time and to any amendment pursuant to Rule 462(d)), the Statutory Prospectus Disclosure Package and the Prospectus Supplement (exclusive of after giving effect to any amendment or supplement theretothereto on or prior to the Applicable Time or providing Rule 430A Information).
(hi) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ij) On the Closing Date, the Underwriters shall have received from BDO Sxxxxxx, LLP a letter, dated as of Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 7(g) of this Agreement.
(k) The FINRA shall has confirmed that it has not have raised any objection with respect to the fairness or and reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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 terms and each of the Insider Lettersarrangements.
(l) On or before the Execution Datedate hereof, the Company shall have caused to be duly executed and delivered a letter from each Participantprocured for the benefit of the Underwriters lock-up agreements, substantially in the form of Exhibit C A attached hereto, from all of the Company’s officers and directors, the Adviser and all of the officers and directors of the Adviser.
(m) At least one Business Day prior In the event that the Underwriters exercise their option provided in Section 3(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company, the Adviser and the Administrator contained herein and the statements in any certificates furnished by the Company, the Adviser and the Administrator hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriters shall have received:
(i) Certificates, dated such Date of Delivery, of a duly authorized officer of the Company, the Adviser and the Administrator and of the chief financial or chief accounting officer of the Company, the Adviser and the Administrator confirming that the information contained in the certificate delivered by each of them at the Closing Date pursuant to Section 7(f) hereof remains true and correct as of such Date of Delivery.
(ii) The opinions of the Company’s General Counsel, Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP and Vxxxxxx LLP, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 7(b), 7(c) and 7(d) hereof.
(iii) The opinion of Cxxxxxxx Chance US LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 7(e) hereof.
(iv) A letter from BDO Sxxxxxx, LLP in form and substance satisfactory to the Underwriters and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 7(g) hereof.
(n) On the Closing Date and at each Date of Delivery, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company in connection with issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(o) If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Securities, on a Date of Delivery which is after the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale obligations of the Units in any jurisdiction designated several Underwriters to purchase the relevant Option Securities, may be terminated by the Representative pursuant Underwriters by notice to Section 5(kk) hereof shall have been issued the Company at any time at or prior to Closing Date or such Date of Delivery, as of the Closing Datecase may be, and no proceedings for such termination shall be without liability of any party to any other party except as provided in Section 4 and except that purpose Sections 1, 2, 9 and 14 shall have been instituted or shall have been threatenedsurvive any such termination and remain in full force and effect. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Cxxxxxxx Chance US LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx30 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Xxxxxxxxx Xxxxxxx Gxxxxxx Pxxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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 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 Xxxxxxxxx WithumSmith+Bxxxx, PC to have furnished to the 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 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 October 24from September 18, 2013 2020 (date of inception) through October 16, 2020, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (f(e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (f(e) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) 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 Representative.
(kj) On the Effective Date, the Company shall have delivered to the 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 and Stockholder Rights Agreement.
(l) 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.
(mk) At least one Business Day prior to the Closing Date, the Sponsor shall have caused a portion of the purchase price for the Private Placement Warrants to be funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Dxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters’ obligation to purchase the Underwritten Securities and the Option Securities, as the case may be, Certificates 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 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 6.1 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 be pending or, to the knowledge of the Company, threatened by the Commission; and the Prospectus Supplement shall have been instituted filed or threatenedtransmitted for filing by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Since March 1, 2006, there shall have been no material adverse change (bnot in the ordinary course of business) in the condition of the Company or Xxxxxxxxxx Securities.
6.3 The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, counsel for the Company, delivered to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative you a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Companycertificate, dated the Closing Date, of the President or a Vice President of the Company to the effect that the signers signer of such certificate have carefully has examined this Agreement, the Registration Statement each Preliminary Approved Offering Materials, the Prospectus, the Prospectus Pooling and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the SecuritiesServicing Agreement and various other closing documents, and this Agreement and that, to the best of his or her knowledge after reasonable investigation:
(ia) 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 in all material respects; and
(b) the Company has has, in all material respects, 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 6.4 You shall have received a negative assurance letter regarding 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 Preliminary Prospectus and Prospectus from Xxxxxxx Xxxxxxxx & Xxxx LLP, special counsel for 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 Company and the Prospectus (exclusive of any supplement thereto)Xxxxxxxxxx Securities.
(e) The Company 6.5 You shall have furnished to received the Representatives a certificate signed by opinions of Xxxxxxx Xxxxxxxx & Xxxx LLP, special counsel for the Secretary or Assistant Secretary of the CompanyCompany and Xxxxxxxxxx Securities, 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 Xxxxxxxxx to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, Date in form and substance satisfactory to the RepresentativeUnderwriters.
6.6 You shall have received from Xxxxx, confirming that they are a registered public accounting firm that is independent with respect Xxxxx, Xxxx & Maw LLP, counsel for the Underwriters, an opinion dated the Closing Date in form and substance satisfactory to the Company within Underwriters.
6.7 You shall have received from Deloitte & Touche LLP, certified public accountants, (a) a letter dated the meaning of date hereof and satisfactory in form and substance to the Act Underwriters and your counsel, to the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and effect that they have performed a review certain specified procedures, all of the audited financial statements of the Company for the period October 24which have been agreed to by you, 2013 (inception) to November 20, 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;
(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 Supplement under the captions “DilutionDescription of the Mortgage Pool,” “Pooling and Servicing Agreement,” “Description of the Certificates” and “CapitalizationYield and Prepayment Considerations” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, Company and Xxxxxxxxxx Securities excluding any questions of legal interpretation; and
interpretation and (iiib) statements as the letter prepared pursuant to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (fSection 4.4(f) include any supplement thereto at the date of the letterhereof.
6.8 The Class A-1, Class A-2, Class A-3 and Class A-4 Certificates shall have each been rated “AAA” by Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof“Standard & Poor’s”), the Statutory Prospectus “Aaa” by Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) and the Prospectus “AAA” by Fitch Ratings (exclusive of any supplement thereto“Fitch”), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) . The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which Class M-1 Certificates shall have been provided to the Representative.
(k) On the Effective Daterated “AA+” by Standard & Poor’s, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder“Aa1” by Moody’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated “AA+” by the Representative pursuant to Section 5(kk) hereof Fitch . The Class M-2 Certificates shall have been issued as of the Closing Daterated “AA+” by Standard & Poor’s, “Aa2” by Moody’s and no proceedings for that purpose “AA+” by Fitch. The Class M-3 Certificates shall have been instituted or rated “AA” by Standard & Poor’s, “Aa3” by Moody’s and “AA” by Fitch. The Class M-4 Certificates shall have been threatenedrated “AA” by Standard & Poor’s, “A1” by Moody’s and “AA” by Fitch. If any of the conditions specified in this Section 6 The Class M-5 Certificates shall not have been fulfilled when rated “AA-” by Standard & Poor’s, “A2” by Moody’s and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 “AA-” by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writingFitch. The documents required to be delivered Class M-6 Certificates shall have been rated “A+” by this Section 6 Standard & Poor’s, “A3” by Moody’s and “A+” by Fitch. The Class M-7 Certificates shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx have been rated “A” by Standard & Xxxx LLPPoor’s, counsel for the Underwriters“Baa1” by Moody’s and “A-” by Fitch. The Class M-8 Certificates shall have been rated “A” by Standard & Poor’s, at Xxx Xxxxxx Xxxx“Baa2” by Xxxxx’x and “BBB+” by Fitch. The Class M-9 Certificates shall have been rated “BBB+” by Standard & Poor’s, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date“Baa3” by Xxxxx’x and “BBB+” by Fitch.
Appears in 1 contract
Samples: Underwriting Agreement (Carrington Mortgage Loan Trust, Series 2006-Rfc1)
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 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 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 shall have requested and caused Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion and negative assurance letter, each dated the Closing Date and addressed to the Representative Representatives, in substantially the form attached as specified in Exhibit A A-1 and Exhibit A-2 hereto, respectively.
(c) The Representative Company shall have furnished to the Representatives a written opinion of the Company’s Co-General Counsel and Corporate Secretary dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Akin Gump Xxxxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representatives shall have received on and as of the Closing Date an opinion of Winston & Xxxxxx LLP, special counsel for the Representatives, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by the Chair 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 ProspectusStatement, 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 in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final 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.
(fg) The Company shall have requested and caused Xxxxxxxxx PricewaterhouseCoopers, LLP to have furnished to the RepresentativeRepresentatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning financial statements and certain financial information contained or incorporated by reference in each of the Act Disclosure Package and the Exchange Act Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than two business days prior to the Closing Date.
(h) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, which may refer to letters previously delivered to one or more of the Representatives, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Disclosure Package 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 October 24, 2013 (inception) to November 20, 2013, and stating in effect that:Final Prospectus.
(i) The Company shall have requested and caused PricewaterhouseCoopers, LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, which may refer to letters previously delivered to one or more of the Representatives, dated respectively as of the Execution Time and as of the Closing Date, in their opinion form and substance satisfactory to the audited Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial statement schedules included information contained or incorporated by reference in each of 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;
(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; 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 (f) include any supplement thereto at the date of the letter.
(gj) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, which may refer to letters previously delivered to one or more of the Representatives, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Disclosure Package and the Final Prospectus.
(k) Subsequent 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 paragraphs (fg) and (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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 RepresentativeRepresentatives, 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).
(hl) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(m) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(jn) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the NASDAQ Capital MarketNew York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the RepresentativeRepresentatives.
(ko) On At the Effective DateExecution Time, the Company shall have delivered furnished to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered Representatives a letter from each Participant, substantially in the form of Exhibit C hereto.
(m) At least one Business Day prior B hereto from each officer and director of the Company and addressed to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedRepresentatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or facsimile 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 Akin Gump Xxxxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders 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 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 or amendment thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement theretoor amendment, 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 and caused Xxxxxxxxx Xxxxxxx LLPXxxxxx & Xxxxxxx, counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion, dated the Closing Date and addressed to the Representative Representatives, covering the matters set forth in the form attached as Exhibit Annex A hereto.
(c) The Representative Company shall have caused Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP, regulatory counsel for the Company, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, covering the matters set forth in Annex B hereto.
(d) The Company shall have caused Howrey Xxxxx Xxxxxx & White, LLP, state money transmitter law regulatory counsel for the Company, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, covering the matters set forth in Annex C hereto.
(e) The Company shall have caused Bird & Bird, UK and Hong Kong regulatory counsel for the Company, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, covering the matters set forth in Annex D hereto.
(f) The Company shall have caused Manatt, Xxxxxx & Xxxxxxxx, LLP, California banking regulatory counsel for the Company, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, covering the matters set forth in Annex E hereto.
(g) The Company shall have caused [ ], New York banking regulatory counsel for the Company, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, covering the matters set forth in Annex F hereto.
(h) The Company shall have caused its general counsel to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives covering the matters set forth in Annex G hereto.
(i) The Company shall have caused Xxxxxx Xxxxxxx Xxxxxxx, UK counsel for the Company, to have furnished the Representatives their opinion, dated the Closing Date and addressed to the Representatives, covering the matters set forth in Annex H hereto.
(j) The Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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.
(dk) The Company shall have caused Fish & Neave, intellectual property counsel for the Company, to have furnished the Representatives their opinion, dated the Closing Date and addressed to the Representatives, covering the matters set forth in Annex I hereto.
(l) The Company shall have furnished to the Representative 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 Prospectus, any supplements to 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 '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 Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(em) The Company Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed by the Secretary or Assistant Secretary on behalf of the CompanySelling Stockholders and delivered pursuant to the Custody Agreement, dated the Closing Date, certifying (i) to the effect that the Amended representations and Restated Certificate warranties of Incorporation and the Bylaws of the Company such Selling Stockholder in this Agreement are true and complete, have not been modified correct on and are in full force and effect, (ii) that as of the resolutions relating Closing Date to the Offering contemplated by this Agreement are in full force and same effect and have not been modified, (iii) copies of all correspondence between as if made on 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 certificateClosing Date.
(fn) The Company shall have requested and caused Xxxxxxxxx PricewaterhouseCoopers LLP to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, confirming that they are a registered public accounting firm that is independent with respect to the Company and Confinity, Inc. they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the audited financial statements unaudited condensed consolidated balance sheet of the Company as of March 31, 2002 and 2001, and unaudited condensed consolidated statements of income, of cash flows and of changes in stockholder's equity for the period October 24three-month periods ended March 31, 2013 2002 and 2001 (inceptiontogether, the "Interim Financial Statements") to November 20, 2013, 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 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 rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; 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, board of directors and audit committee 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 December 31, 2001, nothing came to their attention which caused them to believe that:
(1) any Interim Financial Statement does 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 registration statements on Form S-1; and said Interim 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;
(2) with respect to the period subsequent to March 31, 2002, 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 or decreases in working capital of the Company as compared with the amounts shown on the March 31, 2002 consolidated balance sheet of the Company or for the period from April 1, 2002 to such specified date there were any decreases, as compared with the corresponding period in the preceding quarter in transaction fees, interest on funds held for others, investment management fees, loss from operations, reserve for transaction losses or in total or per share amounts of net loss 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;
(3) the unaudited interim financial information of the Company for each of the three-month periods and one-month periods included in the Prospectus under the captions "Prospectus Summary Recent Developments" do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included in the Registration Statement and the Prospectus; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the CompanyCompany and its subsidiaries) set forth in the Registration Statement, the Statutory Prospectus Statement and the Prospectus, including the information set forth under the captions “"Prospectus Summary" (including the information set forth under the caption "Prospectus Summary-Recent Developments"), "Dividend Policy", "Capitalization", "Dilution” ", "Selected Consolidated Financial Data", "Management's Discussion and “Capitalization” Analysis of Financial Condition and Results of Operations", "Business", Management" and "Certain Relationships and Related Party Transactions" in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the CompanyCompany and its subsidiaries, excluding any questions of legal interpretation; and
(iiiiv) on the basis of a reading of the unaudited pro forma financial statements included in the Registration Statement and the Prospectus (the "pro forma financial statements"); carrying out certain specified procedures; inquiries of certain officials of the Company and Confinity, Inc. who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply as to such other matters incident form in all material respects with the applicable accounting requirements of Rule 11 02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the transaction contemplated hereby as historical amounts in the Representatives may reasonably requestcompilation of such statements. References to the Prospectus in this paragraph (fi) include any supplement thereto at the date of the letter.
(go) Subsequent 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 (fi) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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 supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, 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).
(hp) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(jq) The Securities shall be duly listed subject to notice of issuance have been included for quotation on the NASDAQ Capital Nasdaq National Market, and satisfactory evidence of which such actions shall have been provided to the RepresentativeRepresentatives.
(kr) On At the Effective DateExecution Time, the Company shall have delivered furnished to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered Representatives a letter from each Participant, substantially in the form of Exhibit C hereto.
A hereto (ma "Lock-up Agreement") At least one Business Day prior from each executive officer, except for the chief financial officer, and director of the Company addressed to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedRepresentatives. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company and each Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx LLPXxxxxxxx, counsel for the Underwriters, at Xxx 0000 Xx Xxxxxx Xxxx, Xxx Xxxxx Xxxx, Xxx Xxxx, Xxxxxxxxxx 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Paypal 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 settlement 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); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxx Xxxxxxx LLPXxxxxxxx and Xxxxxx, counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion, dated the Closing Date and addressed to the Representative Representatives, in the form attached as Exhibit in Annex A hereto, in form and substance reasonably satisfactory to the Representatives.
(c) The Representative Representatives shall have received from Akin Gump Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representatives shall have received from Dentons US LLP, regulatory counsel to the Company, their opinion, dated the Closing Date and addressed to the Representatives, in the form attached in Annex B hereto, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from King & Wood Mallesons, local counsel to the Company in the People’s Republic of China, their opinion, dated the Closing Date and addressed to the Representatives, in the form attached in Annex C hereto, in form and substance reasonably satisfactory to the Representatives.
(f) The Company shall have furnished to the Representative Representatives, at the Execution Time and at the Closing Date, a certificate of the Company, signed by the Chief Executive Officer Financial Officer, dated respectively as of the Execution Time and as of the Closing Date, in the form attached as Exhibit B hereto.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the principal 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 ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show roadshow 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) the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package 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.
(fh) The Company shall have requested and caused Xxxxxxxxx Ernst & Young to have furnished to the RepresentativeRepresentatives, 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 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 October 24, 2013 (inception) to November 20, 2013, and stating in effect that:Representatives.
(i) in their opinion The Company shall have furnished to the audited financial statements Representatives, at the Execution Time, dated as of the Execution Time, a properly completed and financial statement schedules included in the Registration Statementexecuted Certification Regarding Beneficial Owners of Legal Entity Customers, the Statutory Prospectus together with copies of identifying documentation, and the Prospectus and reported on by them comply as Company undertakes 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) 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 provide such other matters incident to the transaction contemplated hereby additional supporting documentation as the Representatives may reasonably request. References to request in connection with the Prospectus in this paragraph (f) include any supplement thereto at the date verification of the letterforegoing certification.
(gj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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 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 RepresentativeRepresentatives, 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 Prospectus (exclusive of any amendment or supplement thereto).
(hk) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(jl) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the NASDAQ Capital MarketNASDAQ, and satisfactory evidence of which such actions shall have been provided to the RepresentativeRepresentatives.
(km) On The FINRA, upon review, if any, of the Effective Dateterms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(n) Prior to the Execution Time, the Company shall have delivered furnished to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered Representatives a letter from each Participant, substantially in the form of Exhibit C heretoA hereto (the “Lock-Up Agreement”) from each officer and director of the Company listed on Schedule VI hereto addressed to the Representatives. The Company will use its best efforts to enforce the terms of each Lock-Up Agreement and will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(mo) At least one Business Day prior The Company shall not have received an objection from NASDAQ with respect to the Closing Date, listing of additional shares notification that it filed with NASDAQ in connection with the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedSecurities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx XxxxXxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated hereinXxxx 00000 (or such other place as mutually may be agreed upon), on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 shall have requested and caused Xxxxxxxxx Sheppard, Mullin, Xxxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions their opinion and negative assurance letter, dated the Closing Date and addressed to the Representative Representative, in form and substance reasonably satisfactory to the form attached as Exhibit A heretoRepresentative.
(c) The Company shall have requested and caused Sheppard, Mullin, Xxxxxxx & Hampton LLP, intellectual property counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, in form and substance reasonably satisfactory to the Representative..
(d) The chief financial officer of the Company shall have delivered to the Underwriters, on each of the date hereof and on the Closing Date, a certificate in a form reasonably acceptable to the Representative.
(e) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxx LLP, counsel for the Underwriters, such an opinion or opinionsand negative assurance letter in form and substance reasonably acceptable to the Representative, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have furnished to the Representative 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 ProspectusStatement, the Disclosure Package, 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) the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since 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 Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package 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.
(fg) The Company shall have requested and caused Xxxxxxxxx Xxxxx Xxxxxxx XxXxxx P.C. to have furnished to the 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 Representative, confirming that they are a registered public accounting firm that is and independent with respect to the Company public 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 financial statements of the Company for the period October 24, 2013 (inception) to November 20, 2013, in form 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) 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 substance satisfactory to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letterRepresentative.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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 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 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(hi) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the NASDAQ The Nasdaq Capital Market, and satisfactory evidence of which such actions shall have been provided to the Representative.
(k) On The FINRA, upon review, if any, of the Effective Dateterms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(l) Prior to the Execution Time, the Company shall have delivered furnished to the 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.
(l) 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 heretoA hereto (the “Lock-Up Agreement”) from each officer and director of the Company and all of the holders of substantially all of the Company’s securities addressed to the Representative. The Company will use its reasonable best efforts to enforce the terms of each Lock-Up Agreement and will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(m) At least one Business Day prior Prior to the Closing DateExecution Time, the Sponsor Representative shall have caused received the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedexecuted Finder Fee Notice. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx XxxxXxxxxxxxx, Xxx Xxxx, XX 00000, unless otherwise indicated herein-0000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Aridis Pharmaceuticals, 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 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 Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, counsel for the Company, to have be furnished to the Representative its opinions legal opinions, dated the Closing Date and addressed to the Representative Representative, from the following parties:
(i) Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel for the Company, in the form attached hereto as Exhibit A hereto.A.
(ii) J. Xxxxxx Xxxxx, General Counsel for the Company, in the form of Exhibit B.
(c) The Representative shall have received from Akin Gump Xxxxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such an opinion or opinionsand negative assurance letter, each dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative 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 ProspectusStatement, 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 in all material respects (disregarding any qualifications contained herein regarding materiality or Material Adverse Effect) on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change, or any development involving a prospective change, in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final 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 Xxxxxxxxx Deloitte & Touche LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, lettersletters (which may refer to letters previously delivered to one or more of the Representative), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative, confirming that they are 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 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 October 24, 2013 (inception) to November 20, 2013, 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 Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the CommissionRegulation S-X;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and the Subsidiaries; a reading of the minutes of the meetings of the stockholders and Board of Directors (and committees thereof) of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and the Subsidiaries as to transactions and events subsequent to December 31, 2006, nothing came to their attention which caused them to believe that:
(A) with respect to the period subsequent to December 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 consolidated subsidiaries or capital stock of the Company or decreases in the shareholders’ equity of the Company or working capital of the Company and its consolidated subsidiaries as compared with the amounts shown on the December 31, 2006 consolidated balance sheet included or incorporated by reference in the Final Prospectus, or for the period from January 1, 2007 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in net income or income before income taxes or in total or per share amounts of net income of the Company and its consolidated subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative; and
(B) the information included in the Preliminary Prospectus and the Final Prospectus under the heading “Selected Consolidated Historical Financial and Other Data” and in Item 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Preliminary Prospectus and the Final Prospectus, is not in conformity with the 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 CompanyCompany and its consolidated subsidiaries) set forth or incorporated by reference in the Registration Statement, the Statutory Prospectus and the Final Prospectus, including including, without limitation, the information set forth under the captions “Dilution” Selected Historical Consolidated Financial and “CapitalizationOther Data” in the Statutory Preliminary Prospectus and the Final Prospectus, the information included or incorporated by reference in Items 1, 2, 6, 7 and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Final Prospectus and the information included in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included or incorporated by reference in the Company’s annual report on Form 10-K or reports on Form 8-K, incorporated by reference in the Final Prospectus, agrees with the accounting records of the CompanyCompany and its consolidated subsidiaries, 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 Final Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), prospects, earnings, business or properties of the Company, whether or not arising from transactions in Company and the ordinary course of businessSubsidiaries taken as a whole, 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 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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA Application shall not have raised any objection with respect been made to have the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance for trading on the NASDAQ Capital MarketNew York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 7 will be delivered at the office of Akin Gump Xxxxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLPLLP , counsel for the Underwriters, at Xxx Xxxxxx Xxxx00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, XX 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Adviser and the Administrator contained herein as of the Execution Time, the Closing Date and any settlement date for the Option Securities pursuant to Section 3 hereof, 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 have been filed in the manner and within the time period required by Rule 424(b)497; 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 threatenedthreatened 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.
(b) The Company, the Adviser and the Administrator shall have requested and caused Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, the Adviser and the Administrator to have furnished to the Representatives its opinion, dated the Closing Date (or, if applicable, the settlement date) and addressed to the Representatives in substantially the form attached hereto as Exhibit A and otherwise in form and substance reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, special Maryland counsel for to the Company, to have furnished to the Representative Representatives its opinions opinion as to certain matters pertaining to Maryland law, dated the Closing Date (or, if applicable, the settlement date) and addressed to the Representative Representatives in substantially the form attached hereto as Exhibit A heretoB and otherwise in form and substance reasonably satisfactory to the Representatives.
(cd) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or, if applicable, the settlement date) and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, each Preliminary Prospectus and the Statutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company Company, the Adviser and the Administrator 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 Each of the Company, the Adviser and the Administrator shall have furnished to the Representative Representatives a certificate of the Companycertificate, signed by the Chief Executive Officer principal executive officer 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 DateDate (or, if applicable, the settlement 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, as well as each electronic road show used in connection with the offering of the Securities, supplements thereto and this Agreement and that:
(i) the The representations and warranties of the Company 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 (or, if applicable, the settlement date) with the same effect as if made on the Closing Date (or, if applicable, the settlement 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 DateDate (or, if applicable, the settlement date); and the statements made in the Base Prospectus, each Preliminary Prospectus and the Final Prospectus (and any supplement thereto) under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Recent Developments” are true and correct as of the Closing Date (or, if applicable, the settlement date);
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s, 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 Effectmaterial 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).
(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 Xxxxxxxxx KPMG LLP to have furnished to the RepresentativeRepresentatives, at the Execution Time and at Time, the Closing DateDate and any settlement date, letters, dated respectively as of the Execution Time and as of Time, the Closing DateDate and any settlement date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a registered public accounting firm that it is an independent with respect to the Company accountant within the meaning of the Act and the Exchange 1940 Act and the applicable rules Rules and regulations adopted by the Commission thereunder Regulations and that they have it has audited the consolidated statement of assets and liabilities, including the consolidated schedule of investments of the Company as of December 31, 2011 and 2010 and the related consolidated statement of operations, changes in net assets and cash flows for the year ended December 31, 2011, 2010 and 2009 and performed a review of the audited unaudited interim financial statements information of the Company for the three-month period October 24ended March 31, 2013 (inception) to November 202012 and as at March 31, 20132012 and the three-month and nine-month periods ended September 30, 2012 and as at September 30, 2012, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) in their its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Base Prospectus, each Preliminary Prospectus and the Final Prospectus and reported on by them it comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the Rules and Regulations; and
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; its limited review, in accordance with standards established under Statement on Auditing Standards No. 100, Interim Financial Statements, of the unaudited interim financial information for the three-month period ended March 31, 2012 and as at March 31, 2012 and the three-month and nine-month period ended September 30, 2012 and as at September 30, 2012; 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 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, 2011, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and the 1940 Act and with the related rules and regulations adopted by the Commission;Commission with respect to registration statements on Form N-2; 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, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus; and
(ii2) they have with respect to the period subsequent to September 30, 2012, there were any changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock, increase in debt or decreases in consolidated net assets of the Company, or decrease in per share net asset value as compared with amounts shown on the September 30, 2012 unaudited consolidated statement of assets and liabilities included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus, or for the period from September 30, 2012 to such specified date, there were any decreases in net assets resulting from the operations of the Company as compared with the corresponding period in 2011, 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.
(iii) it has performed certain other specified procedures as a result of which they it 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 Base Prospectus, each Preliminary Prospectus and the Final Prospectus, including the information set forth under the captions “DilutionFees and Expenses” and “CapitalizationSelected Financial and Other Data” in the Statutory Base Prospectus, each Preliminary Prospectus and the Final 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 Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any post-effective 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 (f) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), prospects, earnings, business or properties of the Company, the Adviser and the Administrator, 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 RepresentativeRepresentatives, 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 post-effective amendment thereof), the Statutory Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing DateDate (or, if applicable, the Company settlement date), the Company, the Adviser and the Administrator shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA Subsequent to the execution and delivery of this Agreement and prior to the Closing Date (or, if applicable, the settlement date) there shall not have raised occurred any objection with respect to downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the fairness or reasonableness direction of the underwriting possible change, in the rating accorded the Company or other arrangements any of the transactions contemplated herebysecurities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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 listed and each of the Insider Letters.
(l) On the Execution Date, the Company shall have caused to be duly executed admitted 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 authorized for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedtrading on NASDAQ. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, Underwriters on the Closing DateDate (or, if applicable, the settlement date).
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Selling Stockholders to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Underwritten Securities and the Option Securities, as the case may be, Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of at the Execution Timedate hereof, the Closing Date and any settlement date pursuant to Section 3 hereofeach 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 and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The ProspectusCompany shall have requested and caused (i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company and the Selling Stockholders, to furnish to the Underwriters their opinion and negative assurance statement, each dated the Closing Date and, if applicable, the Option Closing Date, and any supplement thereto, have been filed addressed to the Underwriters and substantially in the manner form of Exhibits B and within C hereto; (ii) Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx LLP, special counsel to the time period required by Rule 424(b)Company, to furnish to the Underwriters their opinion, dated the Closing Date and, if applicable, the Option Closing Date, and substantially in the form of Exhibit D hereto; and no stop order suspending the effectiveness (iii) Xxxx Xxxxxx, Senior Vice President, General Counsel and Secretary of the Registration Statement or any notice objecting Company and its subsidiaries, to its use shall have been issued furnish to the Underwriters his opinion dated the Closing Date and, if applicable, the Option Closing Date, and no proceedings for that purpose shall have been instituted or threatenedsubstantially in the form of Exhibit E hereto.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, 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 A hereto.
(c) The Representative Underwriters shall have received from Akin Gump Xxxxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and, if applicable, the Option Closing Date, and addressed to the RepresentativeUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusShares, the Prospectus (together with any supplement thereto) and Registration Statement and other related matters as the Representative Underwriters 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.
(dc) The Company shall have furnished to the Representative Underwriters a certificate of the Company, signed by (x) the Chief Executive Officer Chairman of the Board or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date and, if applicable, the Option Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and Registration Statement, any amendment or supplement thereto, as well as each electronic road show used in connection with to the offering of the Securities, Prospectus and Registration Statement and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement that are not qualified by materiality are true and correct in all material respects, and the representations and warranties of the Company in this agreement that are qualified by materiality are true and correct, on and as of the Closing Date or the Option Closing Date, as the case may be, with the same effect as if made on the Closing Date Date, or the Option Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending , or the effectiveness of Option Closing Date, as 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, threatenedcase may be; and
(iiiii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus Registration Statement (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition, except financial or otherwise, or in the earnings, business, properties or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement theretoamendments or supplements thereto subsequent to the date of this Agreement).
(ed) The Company shall have furnished to At the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated date hereof and at 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 Xxxxxxxxx Ernst & Young LLP to have furnished furnish to the RepresentativeUnderwriters a "comfort" letter, at dated as of the Execution Time and at date hereof, a bring-down "comfort" letter, dated as of the Closing Date and, if applicable, the Option Closing Date, lettersand an "agreed-upon procedures" letter, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativeManagers, confirming that they are a it is an independent 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 published rules and regulations adopted by the Commission thereunder and that they have performed a review of confirming certain matters with respect to the audited financial statements of the Company for the period October 24, 2013 (inception) to November 20, 2013, and stating in effect that:
(i) in their opinion the audited unaudited financial statements and other financial statement schedules included and accounting information contained 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) 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” . All references in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and
(iiithis Section 6(d) 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 (f) and Registration Statement include any amendment or supplement thereto at the date of the applicable letter.
(ge) The "lock-up" agreements, each substantially in the form of Exhibit A hereto, between you and certain stockholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(f) Subsequent to the Execution Time orexecution and delivery of this Agreement and prior to the Closing Date and, if earlierapplicable, the dates as of which information is given in the Registration Statement Option Closing Date:
(exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), i) there shall not have occurred any downgrading, nor shall any notice have been (i) given of any intended or potential downgrading or of any review for a possible change or decrease specified that does not indicate the direction of the possible change, in the letter or letters referred to in paragraph (frating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) of this Section 6 or under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting the financial condition, financial or otherwise, or in the earnings, business business, properties or properties results of operations of the CompanyCompany and its subsidiaries, whether or not arising taken as a whole, from transactions in the ordinary course of business, except as that set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement theretoamendments or supplements thereto subsequent to the date of this Agreement) the effect of whichthat, in any case referred to in clause (i) or (ii) aboveyour judgment, is, in the sole judgment of the Representative, so is material and adverse as and that makes it, in your judgment, impracticable to make it impractical or inadvisable to proceed with market the offering or delivery of Shares on the Securities as 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.
(hg) Prior to the Closing Date, and, if applicable, the Option Closing Date, the Company shall have furnished to the Representative Underwriters such further information, certificates and documents as the Representative Underwriters may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(jh) The Securities Shares shall be duly have been listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the RepresentativeManagers.
(ki) On the Effective Date, the Company shall have delivered to the 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.
(l) 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, and, if applicable, the Sponsor Option Closing Date, the Registration Statement shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No effective; no stop order preventing or suspending the sale effectiveness of the Units Registration Statement shall be in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued as of the Closing Dateeffect, and no proceedings for that such purpose shall have been instituted be pending before or threatened by the Commission.
(j) Each Selling Stockholder shall have been threatenedfurnished or caused to be furnished to you on the Closing Date, and, if applicable, the Option Closing Date, customary certificates of officers of such Selling Stockholder satisfactory to you to the effect that:
(i) the representations and warranties of such Selling Stockholder in this Agreement that are not qualified by materiality are true and correct in all material respects, and the representations and warranties of such Selling Stockholder in this agreement that are qualified by materiality are true and correct, on and as of the Closing Date or the Option Closing Date, as the case may be, with the same effect as if made on the Closing Date, or the Option Closing Date, as the case may be; and
(ii) such Selling Stockholder has performed in all material respects all obligations and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the Closing Date or the Option Closing Date, as the case may be. 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 opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement Section 6 shall not be reasonably satisfactory in form and substance satisfactory to the Representative Managers 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 or, if applicable, the Option Closing Date by the RepresentativeUnderwriters. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall will be delivered at the office of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the UnderwritersCompany, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Foundation Coal 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 and the Parent contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Parent made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Parent of its their respective obligations hereunder and to the following additional conditions:
(a) The If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, shall have been filed in the manner and within the time period required by Rule 424(b); 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 any such purpose shall have been instituted or threatened; and any request of the Commission for additional information (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been disclosed to the Representatives and complied with in all material respects.
(b) The Company and the Parent shall have requested and caused Xxxxxxxxx Xxxxxxx furnished to the Representatives the opinion of Cravath, Swaine & Xxxxx LLP, counsel for the CompanyCompany and the Parent, to have furnished to and Xxxxxxx, Xxxx & Xxxxxxx, Bermuda counsel for the Representative its opinions Parent, each dated the Closing Date and addressed to the Representative Date, substantially in the form attached hereto as Exhibits A and B, respectively, and a 10b-5 statement from Cravath, Swaine & Xxxxx LLP, substantially in the form of Exhibit A hereto.C.
(c) The Representative Representatives shall have received on the Closing Date an opinion of Xxxxxx Xxxxxx, General Counsel for the Parent, dated the Closing Date, substantially in the form of Exhibit D.
(d) The Representatives shall have received on the Closing Date an opinion of Xxxxx X. Xxxxxx, General Counsel for OneBeacon Insurance Company, dated the Closing Date, substantially in the form of Exhibit E.
(e) The Representatives shall have received on the Closing Date an opinion of Xxxxxx X. Xxxxxx, General Counsel for Folksamerica Holding Company, Inc., dated the Closing Date, substantially in the form of Exhibit F.
(f) The Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeDate, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Statutory Prospectus, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company and the Parent shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(dg) The Each of the Company and the Parent shall have furnished to the Representative Representatives a certificate of the CompanyCompany or the Parent, as applicable, signed by the Chief Executive Officer Chairman of the Board or the President and the principal financial or accounting officer of the CompanyCompany or the Parent, as applicable, 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, any supplements to the Final 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 or the Parent, as applicable, 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 or the Parent, as applicable, has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the 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 or the Parent's knowledge, as applicable, threatened; and;
(iii) since the date dates as of the most recent financial statements included which information is given in the Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has not been no Material Adverse Effectany event or development that has had or would reasonably be expected to have a material adverse effect on the financial condition, results of operation, business or property of the Company or the Parent and their respective 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 Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Effective Date there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Final Prospectus which has not been so set forth.
(eh) The Company At the Execution Time PricewaterhouseCoopers LLP shall have furnished to the Representatives letters (which may refer to letters previously delivered to one or more of the Representatives) containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Final Prospectus (including the documents incorporated by reference therein), dated as of the Execution Time, in form and substance satisfactory to the Representatives. In addition, at the Closing Date, such auditors shall have furnished to the Representatives a certificate signed by the Secretary letter 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 Xxxxxxxxx to have furnished to the 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 RepresentativeRepresentatives, 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 October 24, 2013 (inception) to November 20, 2013, and stating in effect that:set forth above.
(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) 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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (fh) of this Section 6 5 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany or the Parent and their respective 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 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 RepresentativeRepresentatives, 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 Final Prospectus (exclusive of any supplement thereto).
(hj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's or the Parent's or any Designated Subsidiary's debt securities or of any subsidiary's financial strength or claims-paying ability by any "nationally recognized statistical rating organization" (as defined for purpose 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.
(k) The Company and the Parent shall have executed and delivered the Indenture in a form and substance reasonably satisfactory to the Representatives.
(l) Prior to the Closing Date, the Company and the Parent shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(im) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which No Underwriter shall have been provided advised by either the Company or the Parent or shall have discovered and disclosed to the Representative.
(k) On Company or the Effective DateParent that the Registration Statement or the Final Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in the Company shall have delivered Representatives' opinion, or in the opinion or counsel to the Representative executed copies Underwriters, is material, or omits to state a fact which, in the Representatives' opinion, or in the opinion of counsel to the Trust AgreementUnderwriters, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement is material and each of the Insider Letters.
(l) On the Execution Date, the Company shall have caused is required to be duly executed and delivered a letter from each Participant, substantially in stated therein or is necessary to make 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 funded into the Trust Accountstatements therein not misleading.
(n) No order preventing or suspending Subsequent to the sale execution and delivery of this Agreement, there shall not have occurred any of the Units following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange, the Nasdaq National Market or the over-the-counter market, or trading in any jurisdiction designated by securities of the Representative pursuant to Section 5(kk) hereof Parent on any exchange shall have been issued as suspended, the settlement of the Closing Date, and no proceedings for that purpose such trading generally shall have been instituted materially disrupted or minimum prices shall have been threatenedestablished on any such exchange or market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities, (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis, (iv) there shall have occurred a material disruption of securities settlement or clearance services or (v) there shall have occurred a material adverse change in general domestic or international economic, political or financial conditions, including, without limitation, as a result of terrorist activities, the effect of which on the financial markets in the United States shall be such, as to make it in the sole judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Final Prospectus. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company and the Parent in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 5 shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx LLPXxxxxxxx, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (White Mountains Insurance Group LTD)
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 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 Xxxxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativeRepresentatives, 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 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 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, 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, 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 Datesuch 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 Xxxxxxxxx Xxxxxx to have furnished to the Representative, at the Execution Time and at the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, as applicable, in form and substance satisfactory to the 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 October 24, 2013 (inception) to November 20, 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;
(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 (f) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing DateDate and any settlement date, as applicable, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(kj) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Founders’ Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Insider Letter, the Registration Rights Agreement and each of the Insider LettersAdministrative Services Agreement.
(l) 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.
(mk) At least one Business Day prior to the Closing DateDate or any settlement date, the Sponsor shall have caused as applicable, the purchase price for the Private Placement Warrants to shall be funded deposited into the Trust AccountAccount at X.X. Xxxxxx Xxxxx Bank, N.A., with Continental Stock Transfer & Trust Company acting as trustee.
(nl) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representative pursuant to Section 5(kk5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 delivered, electronically, or if by mail, at the office of Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxx Xxxxxxxx LLP, 000 Xxxxx Xxxxxx XxxxXxxxxx, Xxxxxx-Xxxxx Xxxxx, Xxx XxxxXxxxxxx, Xxx XxxxXxxxxxxxxx 00000, 00000Attention: Xxxxx Xxxxx and Xxxxxxxx Xx, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (FirstMark 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 settlement 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 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); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions Representatives an opinion and negative assurance statement, each dated the Closing Date and addressed to the Representative Representatives substantially in the form attached as Exhibit A heretoset forth in Exhibits B-1 and B-2, respectively.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representative 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 ProspectusStatement, 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 contained in Section 1(i) of this Agreement Agreement, including, for the avoidance of doubt, in Section 1(i)(oo) of this Agreement, are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has 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 of the Company 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, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company Company, the Purchase Contract Agent and the Trustee shall have furnished to executed and delivered 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 Purchase Contract Agreement and the Bylaws of the Company are true and completeUnderwriters shall have received copies, have not been modified and are in full force and effectconformed as executed, (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 certificatethereof.
(f) The Company and the Trustee shall have executed and delivered each of the Base Indenture and the Supplemental Indenture and the Underwriters shall have received copies, conformed as executed, thereof.
(g) The Company shall have requested and caused Xxxxxxxxx PricewaterhouseCoopers LLP and Ernst & Young LLP to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24, 2013 (inception) to November 20, 2013, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included substantially 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) 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 Exhibit C 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; andExhibit D.
(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 (f) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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 RepresentativeRepresentatives, 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).
(hi) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates information and documents as the Representative Representatives may reasonably request.
(ij) FINRA An application for the listing of the Securities and the Issuable Common Stock shall not have raised any objection with respect been submitted to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the RepresentativeRepresentatives. The Issuable Common Stock shall have been approved for listing, subject to official notice of issuance.
(k) On At the Effective DateExecution Time, the Company shall have delivered furnished to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered Representatives a letter from each Participant, substantially in the form of Exhibit C hereto.
(m) At least one Business Day prior A-1 hereto from each person listed on Schedule IV hereto addressed to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedRepresentatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, XX 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement 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 Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx Xxxx and Xxxx LLP, counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion, dated the Closing Date, substantially in the form attached hereto as Exhibit A.
(c) The Company shall have requested and caused Lando & Xxxxxxxx, LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representative Representatives, substantially in the form attached hereto as Exhibit A hereto.B.
(cd) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representative Representatives a certificate of the Company, signed by the President and Chief Executive Officer and the principal financial or accounting officer Vice President, Finance and Business Operations of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, 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 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 Disclosure Package 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 Xxxxxxxxx Ernst & Young LLP to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24, 2013 (inception) to November 20, 2013, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included substantially in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply form 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) 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 (f) include any supplement thereto at the date of the letter.Exhibit C.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (fd) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the Company, Company whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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 RepresentativeRepresentatives, 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 Prospectus (exclusive of any amendment or supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) 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 Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or other arrangements 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 transactions contemplated herebypossible change.
(j) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the NASDAQ Capital Global Market, and satisfactory evidence of which such actions shall have been provided to the RepresentativeRepresentatives.
(k) On At the Effective DateExecution Time, the Company shall have delivered furnished to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered Representatives a letter from each Participant, substantially in the applicable form of Exhibit C hereto.
(m) At least one Business Day prior D hereto from each officer and director and specified stockholders of the Company addressed to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedRepresentatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx XxxxXxxxxxxxx, Xxx Xxxx, XX 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Eleven Biotherapeutics, 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 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); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx (i) Xxxxxxxx & Knight LLP, special counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion, dated the Closing Date and addressed to the Representative Representatives, in the form attached hereto as Exhibit A heretoC-1, and (ii) XxXxxxx, Xxxxxx & West PLLC, special counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form attached hereto as Exhibit C-2.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxxxx & Xxxx LLPXxxxxx L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representative Representatives a certificate of the Company, signed by the Chief Executive Officer principal 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 ProspectusStatement, the Disclosure Package, 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 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 Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Company At the Execution Time and on the Closing Date and on any settlement date, Xxxx & Associates LLP shall have furnished to the Representatives a certificate signed by Representatives, at the Secretary or Assistant Secretary request of the Company, letters, dated the respective dates of delivery thereof, addressed to the Underwriters and in the form of Exhibit D hereto (except that, in any letter dated the Closing DateDate or a settlement 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 specified date referred to in such certificate Exhibit D shall be attached a date no more than three days prior to such certificate.
(f) The Company shall have requested and caused Xxxxxxxxx to have furnished to the 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 RepresentativeDate or settlement date, confirming that they are a registered public accounting firm that is and independent with respect to the Company public 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 financial statements of the Company for the period October 24, 2013 (inception) to November 20, 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;
(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 (f) include any supplement thereto at the date of the letterAct.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), prospects, earnings, business or properties of the CompanyCompany 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 Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, isis such as to make it, in the sole judgment of the RepresentativeRepresentatives, 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 thereofthereto), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, additional certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(jh) The Securities shall be duly listed have been approved for listing on the NASDAQ National Market, subject to notice of issuance on the NASDAQ Capital Marketissuance, and satisfactory evidence of which such action shall have been provided to the RepresentativeRepresentatives.
(ki) On At the Effective DateExecution Time, the Company shall have delivered furnished to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered Representatives a letter from each Participant, substantially in the form of Exhibit C heretoA hereto from each officer and director of the Company and the persons listed in Schedule III hereto addressed to the Representatives.
(mj) At least one Business Day prior the Execution Time and on the Closing Date and on any settlement date, NSAI shall have furnished to the Closing DateRepresentatives, at the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale request of the Units Company, letters, dated the respective dates of delivery thereof, addressed to the Underwriters, and in any jurisdiction designated by the Representative pursuant to Section 5(kkform of Exhibit E hereto (i) hereof shall have been issued confirming that, as of the Closing Datedate of its reserve reports, it was an independent reserve engineer for the Company and/or its subsidiaries and that, as of the date of such letter, no proceedings for information had come to its attention that purpose shall could reasonably have been instituted or shall have been threatenedexpected to cause it to withdraw its reserve report and (ii) otherwise in form and substance acceptable to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Xxxxxx & Xxxx LLPXxxxxx L.L.P., counsel for the Underwriters, at Xxx Xxxxxx Xxxx0000 Xxxx Xxxxxx, Xxx XxxxSuite 3700, Xxx XxxxDallas, 00000, unless otherwise indicated hereinTexas 75201, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Xxxxxxxxx Xxxxxxx Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date and addressed to the Representative Representatives in form and substance acceptable to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative Representatives a certificate of the Company, signed by the Chief Executive Officer President 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 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 SecuritiesOffering, 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 is true and complete, have has not been modified and are 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.
(f) The Company shall have requested and caused Xxxxxxxxx Xxxxxx to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24March 21, 2013 2017 (the date of inception) to November through April 20, 20132017, 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;
(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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(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.
(ji) 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 RepresentativeRepresentatives.
(kj) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Registration Rights Agreement, the Warrant Subscription Agreement, the Escrow Administrative Services Agreement and each of the Insider LettersLetter.
(l) 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.
(mk) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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) 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 and are customary with offerings of this type. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx XxxxXX, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Federal Street Acquisition Corp.)
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 settlement date pursuant to Section 3 hereofDate, 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 threatenedthreatened 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 Xxxx X. Xxxxxxx, Vice President and caused Xxxxxxxxx Xxxxxxx LLP, counsel for General Counsel of the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative substantially in the form attached included as Exhibit A hereto.A.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxxxxx, Carton & Xxxx LLPXxxxxxx, Chicago, Illinois, counsel for the Underwriters, such opinion or opinions, opinions dated the Closing Date and addressed to the Representative, with respect to the issuance and sale incorporation of the Company, this Agreement, the validity of the Debt Indenture, the Debt Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representative 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 ProspectusStatement, 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 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 and its subsidiaries taken as a whole, 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 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 furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of received letters from the Company, 's independent public accountants (dated the date of this Agreement and 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 Commissionrespectively, 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 Xxxxxxxxx to have furnished to the 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 Representative, confirming Representatives) advising that (i) they are a registered independent public accounting firm that is independent with respect to the Company within the meaning of accountants as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the consolidated 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 October 24, 2013 (inception) to November 20, 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 Exchange Act and the related published rules and regulations adopted by of the Commission;
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 and its consolidated subsidiaries, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the Shareholders, of the Company and its subsidiaries since the date of the most recent audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries 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 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 he 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 and its consolidated subsidiaries 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, net income, or earnings per share of Common Stock 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; (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; and
) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them and (iiiv) statements as to such other on the basis of a reading of the unaudited pro forma financial information incorporated by reference in the Registration Statement and the Prospectus, carrying out certain specified procedures that would not necessarily reveal matters incident of significance with respect to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus comments set forth in this paragraph (f) include any supplement thereto at the date v), inquiries of certain officials of the letterCompany who have responsibility for financial and accounting matters and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amouns in the unaudited pro forma financial information, nothing came to their attention that caused them to believe that the unaudited pro forma financial information does not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such information.
(gf) 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 (fe) 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) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement, and (ii) since the date of this Agreement, neither the Company nor any of its subsidiaries shall 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 its subsidiaries, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial conditionposition, earnings, business stockholders' equity or properties results of operations of the Company, whether or not arising from transactions in the ordinary course of business, except Company and its subsidiaries 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 Representative, Underwriters 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.
(hi) 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 Representative Representatives such further information, certificates and documents as the Representative they may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriterstheir 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Northern States Power Co /Mn/)
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 settlement date Additional Closing 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 Xxxxxxxxx Xxxxxxx Pxxx Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx MxXxxxxxx Will & Xxxx Exxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusGeneral Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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, 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 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 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 Xxxxxxxxx Mxxxxx to have furnished to the 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 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 October 24from June 21, 2013 2021 (inception) through July 27, 2021, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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; 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective changechange in, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketThe Nasdaq GlobalMarket, satisfactory evidence of which shall have been provided to the Representative.
(kj) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Private Placement Agreement, the Warrant Subscription AgreementInsider Letter, the Escrow Registration and Shareholder Rights Agreement and each of the Insider LettersAdministrative Support Agreement.
(l) 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.
(mk) 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 funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx MxXxxxxxx Will & Xxxx Exxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx XxxxOxx Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Rxxxxx Xxxxx, Esq., unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Seaport Global Acquisition II 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, Shares at each Closing Date 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, the date hereof and as of such Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company officers on and as of such 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 threatenedthreatened 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 such Closing Date, of Xxxx X. Xxxxxxx, Vice President and caused Xxxxxxxxx Xxxxxxx LLPGeneral Counsel of the Company, substantially in the form included as Exhibit A, and Xxxxx Day, Chicago, Illinois, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative substantially in the form attached included as Exhibit A hereto.B.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, New York, New York, counsel for the Underwriters, such opinion or opinions, opinions dated the such Closing Date and addressed to the 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 such matters as the Representative 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 Representative 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 such Closing Date, as to the matters set forth in paragraphs (a) and (i) of this Section 7 and to the further effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, 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 such Closing Date with the same effect as if made on the such 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 such Closing Date;
(ii) there has been no stop order suspending material adverse change in the effectiveness condition of the Company and its subsidiaries taken as a whole, 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 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, threatenedProspectus; and
(iii) (A) the Prospectus, as of its date and as of such Closing Date, and the Pricing Disclosure Package, as of the Applicable Time, did not and do not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading and (B) since the date of the most recent financial statements included Prospectus no event has occurred which should have been set forth, in light of the Statutory Prospectus and circumstances, in a supplement or amendment to 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)Prospectus.
(e) The Company Representatives shall have furnished to received letters from Deloitte & Touche LLP, independent public accountants for the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, Company (dated the date of this Agreement and each 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 Commissionrespectively, 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 Xxxxxxxxx to have furnished to the 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 Representative, confirming Representatives) 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 published rules and regulations of the Commission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules included or incorporated by reference in the Registration Statement or Prospectus 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 October 24, 2013 (inception) to November 20, 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 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 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 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; 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 or Prospectus, there were any 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 and its consolidated subsidiaries 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 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 (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 CompanyCompany 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 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; and
(iii) statements as have found such information and percentages to such other matters incident to be in agreement with the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (f) include any supplement thereto at the date relevant accounting and financial information of the letterCompany referred to in such letter in the description of the procedures performed by them.
(gf) 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 (fe) 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 Shares on the terms and in the manner contemplated by the Prospectus.
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded any debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Shares 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).
(h) Subsequent to the execution and delivery of this Agreement, no event or condition of a type described in Section 1(l) shall have occurred or shall exist, which event or condition is not described in the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated by this Agreement and the Prospectus.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor 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 Prospectus, and (ii) since the date of this Agreement, neither the Company nor any of its subsidiaries shall 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 its subsidiaries, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, business, financial conditionposition, earningsstockholder’s equity, business results of operations or properties prospects of the Company, whether or not arising from transactions in the ordinary course of business, except Company and its subsidiaries otherwise than as set forth in or contemplated in the Statutory 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, is in the sole judgment of the Representative, 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 Shares on the terms and in the manner contemplated by this Agreement and the Prospectus.
(j) No Representative shall have advised the Company that the Registration Statement (exclusive of or Prospectus, or any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any 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.
(hk) Prior 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 Shares; 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 Shares.
(l) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative they may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(jm) The Securities shall Shares to be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which delivered at such Closing Date shall have been provided duly approved for listing on the New York and Chicago Stock Exchanges and the Pacific Exchange, subject to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies official notice 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedissuance. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriterstheir counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the First Closing Date and with respect to the Option Shares, the Second Closing Date by the RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Applicable Time, the Closing Date and any settlement date pursuant to Section 3 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 ProspectusRegistration Statement, has become effective and any supplement thereto, have been filed in on the manner and within the time period required by Rule 424(b); and Closing Date no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued under the 1933 Act, no stop order pursuant to Section 8(d) of the 1933 Act shall have been issued, and no proceedings for that purpose with respect to either shall have been instituted initiated or, to the Company’s knowledge, threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430A Information shall have been filed with the Commission in accordance with Rule 497 (or threateneda post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A).
(b) The Company’s General Counsel shall have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit B thereto.
(c) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx Xxxxxxxx Chance US LLP, counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion, dated the Closing Date and addressed to the Representative Representatives, substantially in the form attached as set forth in Exhibit A heretoC thereto.
(cd) The Representative Company shall have requested and caused Xxxxxxx LLP, Maryland counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit D thereto.
(e) The Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus Supplement (together with any supplement thereto) and other related matters as the Representative 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.
(df) The Company shall have furnished to the Representative 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 ProspectusStatement, the Disclosure Package, the Prospectus Supplement 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 in the Statutory Prospectus Disclosure Package and the Prospectus Supplement (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus Supplement (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.
(fg) The Company shall have requested and caused Xxxxxxxxx BDO Xxxxxxx, LLP to have furnished to the RepresentativeRepresentatives, at the Execution Applicable Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Applicable Time and as of the Closing Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the 1933 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 unaudited interim financial statements information of the Company for the three-month period October 24ended March 31, 2013 (inception) to November 202008, 2013and as at March 31, 2008, 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 and pro forma financial statements included or incorporated by reference in the Registration Statement, the Statutory Preliminary Prospectus and the Prospectus Supplement and reported on by them comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the three-month period ended March 31, 2008, and as at March 31, 2008 included in the Registration Statement, the Preliminary Prospectus and the Prospectus Supplement; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and audit, nominating and corporate governance committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to June 30, 2007 , nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus Supplement do not comply as to form with applicable accounting requirements of the 1933 Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus Supplement;
(2) with respect to the period subsequent to March 31, 2008, there were any changes, at a specified date not more than five days prior to the date of the letter, in the credit facility payable or payable for securities purchased or decreases in the net assets as compared with the amounts shown on the March 31, 2008 consolidated statement of assets and liabilities included in the Registration Statement, the Preliminary Prospectus and the Prospectus Supplement, or for the period from April 1, 2008 to such specified date there were any decreases, as compared with the corresponding period in the preceding quarter in total investment income, net investment income or earnings per common share 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;
(3) the information included in the Registration Statement, the Preliminary Prospectus and Prospectus Supplement in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the CompanyCompany and its subsidiaries) set forth in the Registration Statement, the Statutory Preliminary Prospectus and the ProspectusProspectus Supplement and in Exhibit 12 to the Registration Statement, including the information set forth under the captions caption “Dilution” and “CapitalizationSelected Condensed Financial Data” in the Statutory Preliminary 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 requestProspectus Supplement. References to the Prospectus Supplement in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus Supplement (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 (fg) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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 Prospectus Supplement (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 RepresentativeRepresentatives, 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 Prospectus Supplement (exclusive of any amendment or supplement thereto).
(hi) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ij) On the Closing Date, the Underwriters shall have received from BDO Xxxxxxx, LLP a letter, dated as of Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 7(g) of this Agreement.
(k) The FINRA shall has confirmed that it has not have raised any objection with respect to the fairness or and reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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 terms and each of the Insider Lettersarrangements.
(l) On or before the Execution Datedate hereof, the Company shall have caused to be duly executed and delivered a letter from each Participantprocured for the benefit of the Underwriters lock-up agreements, substantially in the form of Exhibit C A attached hereto, from all of the Company’s officers and directors, the Adviser and all of the officers and directors of the Adviser.
(m) At least one Business Day prior In the event that the Underwriters exercise their option provided in Section 3(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company, the Adviser and the Administrator contained herein and the statements in any certificates furnished by the Company, the Adviser and the Administrator hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Underwriters shall have received:
(i) Certificates, dated such Date of Delivery, of a duly authorized officer of the Company, the Adviser and the Administrator and of the chief financial or chief accounting officer of the Company, the Adviser and the Administrator confirming that the information contained in the certificate delivered by each of them at the Closing Date pursuant to Section 7(f) hereof remains true and correct as of such Date of Delivery.
(ii) The opinions of the Company’s General Counsel, Xxxxxxxx Chance US LLP and Xxxxxxx LLP, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 7(b), 7(c) and 7(d) hereof.
(iii) The opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 7(e) hereof.
(iv) A letter from BDO Xxxxxxx, LLP in form and substance satisfactory to the Underwriters and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 7(g) hereof.
(n) On the Closing Date and at each Date of Delivery, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company in connection with issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(o) If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Securities, on a Date of Delivery which is after the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale obligations of the Units in any jurisdiction designated several Underwriters to purchase the relevant Option Securities, may be terminated by the Representative pursuant Underwriters by notice to Section 5(kk) hereof shall have been issued the Company at any time at or prior to Closing Date or such Date of Delivery, as of the Closing Datecase may be, and no proceedings for such termination shall be without liability of any party to any other party except as provided in Section 4 and except that purpose Sections 1, 2, 9 and 14 shall have been instituted or shall have been threatenedsurvive any such termination and remain in full force and effect. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx LLPXxxxxxxx, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested furnished to the Representatives the opinion, dated the Closing Date, in the form and caused Xxxxxxxxx substance as set forth in Exhibit A-1 hereto, and the letter, dated the Closing Date, in the form and substance as set forth in Exhibit A-2 hereto, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, to have furnished or such other counsel reasonably acceptable to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxxxx & Xxxx Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeDate, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Prospectus and any amendment or supplement theretoFinal Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since Since the date of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a certificate signed by the Secretary letter or Assistant Secretary letters (which may refer to letters previously delivered to one or more 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 Xxxxxxxxx to have furnished to the Representative, at the Execution Time and at the Closing Date, lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a an independent registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and covering matters that they have performed a review of are ordinarily covered by “comfort letters” to underwriters with respect to the audited financial statements of the Company for the period October 24, 2013 (inception) to November 20, 2013, 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 Final Prospectus; provided, however, that the letter furnished on and reported on by them comply dated 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) they have performed certain other specified procedures as Closing Date shall use 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 “Dilutioncut-off” 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 date no more than three business days prior to the transaction contemplated hereby as the Representatives may reasonably requestClosing Date. References to the Final Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or decrease incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (fe) of this Section 6 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor other), 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 Company and the Prospectus (exclusive of any supplement thereto) its subsidiaries the effect of which, which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA The Representatives shall not have raised any objection received from counsel, satisfactory to the Representatives, such opinion or opinions, dated the Closing Date, with respect to compliance with the fairness or reasonableness laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the underwriting or Securities, the Prospectus and other arrangements related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of the transactions contemplated herebyenabling them to pass upon such matters.
(j) The Securities If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall be duly listed subject to notice of issuance on have received an opinion from tax counsel for the NASDAQ Capital MarketCompany, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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 Representatives and each of the Insider Letters.
(l) 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 dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedFinal Prospectus. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwritersits 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Xxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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 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 Xxxxxxxxx Xxxxxx to have furnished to the 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 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 October 24from May 22, 2013 2020 (date of inception) through June 1, 2020, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNASDAQ, satisfactory evidence of which shall have been provided to the Representative.
(kj) On the Effective Datedate hereof, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Founders’ Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement Insider Letters and each of the Insider LettersRegistration Rights Agreement.
(l) 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.
(mk) At least one Business Day prior to the Closing Date, each of the Sponsor Sponsors shall have caused the purchase price for the Private Placement Warrants Portion to be funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (East Resources 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 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); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx Ropes & Xxxx LLP, counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion and negative assurance letter, dated the Closing Date and addressed to the Representative Representatives, substantially in the form attached as Exhibit A heretoExhibits C-1 and C-2.
(c) The Representative Company shall have requested and caused Xxxxxx Hall & Xxxxxxx LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit D.
(d) The Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representative 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 ProspectusStatement, the Disclosure Package, 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 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 Disclosure Package 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 Xxxxxxxxx Ernst & Young LLP to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 nine-month period October 24ended September 30, 2013 (inception) to November 20and as at September 30, 2013, in accordance with PCAOB UAU 722 and stating in effect thatsubstantially the form attached as Exhibit E:
(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) 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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the Company, Company whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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 RepresentativeRepresentatives, 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 Prospectus (exclusive of any amendment or supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) 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 Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or other arrangements 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 transactions contemplated herebypossible change.
(jk) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the NASDAQ Capital Global Market, and satisfactory evidence of which such actions shall have been provided to the RepresentativeRepresentatives.
(kl) On At the Effective DateExecution Time, the Company shall have delivered furnished to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered Representatives a letter from each Participant, substantially in the form of Exhibit C hereto.
(m) At least one Business Day prior A hereto from each officer and director of the Company and the holders of substantially all of the equity securities of the Company addressed to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedRepresentatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx500 Xxxxxxxx Xx., Xxx XxxxXxxxxx, Xxx Xxxx, XX 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, 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 settlement date pursuant to Section 3 hereofDate, 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 threatenedthreatened by the Commission; no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; 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 Xxxxxxx X. Xxxxxxxx, Vice President and caused Xxxxxxxxx Xxxxxxx LLPGeneral Counsel of the Company, that address substantially the matters set forth in Exhibit A, and Xxxxx Day, Chicago, Illinois, counsel for the Company, to have furnished to that address substantially the Representative its opinions dated the Closing Date and addressed to the Representative matters set forth in the form attached as Exhibit A hereto.B.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, New York, New York, counsel for the Underwriters, such opinion or opinions, opinions dated the Closing Date and addressed to the 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 such matters as the Representative 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 Representative 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 ProspectusStatement, 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, 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 Effectmaterial 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 Prospectus.
(e) The Company Representatives shall have furnished to received letters from Deloitte & Touche LLP, independent public accountants for the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, Company (dated the date of this Agreement and 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 Commissionrespectively, 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 Xxxxxxxxx to have furnished to the 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 Representative, confirming Representatives) 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 October 24thereunder, 2013 (inception) to November 20, 2013, 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;
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 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 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 stockholders’ equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the 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 CompanyCompany 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; and
(iii) statements as have found such information and percentages to such other matters incident to be in agreement with the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (f) include any supplement thereto at the date relevant accounting and financial information of the letterCompany referred to in such letter in the description of the procedures performed by them.
(gf) 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 (fe) 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 Rule 436(g)(2) under the 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 changeno such organization shall have publicly announced that it has under surveillance or review, or any development involving a prospective changehas changed its outlook with respect to, in or affecting the financial condition, earnings, business or properties its rating of the CompanyNotes 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 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, financial or otherwise, 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 Representative, 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.
(hi) 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 Representative Representatives such further other customary information, certificates and documents as the Representative they may reasonably request.
(il) 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.
(j) 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 Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued as of Company and authenticated by the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatenedTrustee. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriterstheir 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Xxxxxxxxx Xxxxxxx XxXxxxxxx Will & Xxxxx LLP, 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 A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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 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 Xxxxxxxxx to have furnished to the 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 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 October 24February 2, 2013 2011 (inception) to November 20February 4, 20132011, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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 Closing Date, the Sponsor shall have entered into an escrow agreement with AST, as escrow agent, or such other escrow agent that is reasonably acceptable to the Representative, pursuant to which the Sponsor shall deliver into escrow the Founder’s Shares and Sponsor Warrants with such Founder’s Shares and Sponsor Warrants being held in escrow until satisfaction of the applicable conditions described therein.
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 Sponsor Warrants to be funded into the Trust Account.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Global 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 settlement date pursuant to Section 3 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 Xxxxxxxxx Xxxxxxx Ellenoff Gxxxxxxx & Schole LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative Representative, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.. Credit Suisse Securities (USA) LLC [●], 2021
(d) The Company shall have furnished to the 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 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 Xxxxxxxxx Mxxxxx to have furnished to the 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 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 October 24from January 15, 2013 2021 (date of inception) through February 9, 2021, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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 Credit Suisse Securities (USA) LLC [●], 2021
(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 (f(e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (f(e) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNasdaq, satisfactory evidence of which shall have been provided to the Representative.
(kj) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Subscription Agreement, the Warrant Subscription Agreement, the Escrow Insider Letters, the Registration Rights Agreement and each of the Insider LettersAdministrative Support Agreement.
(l) 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.
(mk) 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 funded deposited into the Trust Account.. Credit Suisse Securities (USA) LLC [●], 2021
(nl) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Yxx Xxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Blueprint Health 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, 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 settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of Company officers on and as of the Company 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 Supplement relating to the Bonds 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 threatenedthreatened 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 Xxxx X. Xxxxxxx, Vice President and caused Xxxxxxxxx Xxxxxxx LLPGeneral Counsel of the Company, substantially in the form included as Exhibit A, and Xxxxx Day, Chicago, Illinois, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative substantially in the form attached included as Exhibit A hereto.B.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, New York, New York, counsel for the Underwriters, such opinion or opinions, opinions dated the Closing Date and addressed to the 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 such matters as the Representative 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 Representative 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 ProspectusStatement, 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 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) there has been no stop order suspending material adverse change in the effectiveness condition of the Company and its subsidiaries taken as a whole, 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 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, threatenedProspectus Supplement; and
(iii) since (A) as of 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 Xxxxxxxxx to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, the Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading and (B) since the date of the Prospectus no event has occurred which should have been set forth, in light of the circumstances, in a supplement or amendment to the Prospectus.
(e) The Representatives shall have received letters from Deloitte & Touche, LLP, independent public accountants for the Company (dated the date of this Agreement and Closing Date, respectively, and in form and substance satisfactory to the Representative, confirming Representatives) 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 published rules and regulations of the Commission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules incorporated by reference in the Registration Statement or Prospectus 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 October 24, 2013 (inception) to November 20, 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 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 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 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 Commission;
Registration Statement or Prospectus, there were any 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 and its consolidated subsidiaries 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 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 (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, 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 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; and
(iii) statements as have found such information and percentages to such other matters incident to be in agreement with the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (f) include any supplement thereto at the date relevant accounting and financial information of the letterCompany referred to in such letter in the description of the procedures performed by them.
(gf) 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 (fe) 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 Bonds on the terms and in the manner contemplated by the Prospectus.
(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 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).
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor 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 Prospectus Supplement, and (ii) since the date of this Agreement, neither the Company nor any of its subsidiaries shall 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 its subsidiaries, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, business, financial conditionposition, earningsstockholders' equity, business results of operations or properties prospects of the Company, whether or not arising from transactions in the ordinary course of business, except Company and its subsidiaries 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 Representative, 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 this Agreement and the Prospectus.
(i) No Representative shall have advised the Company that the Registration Statement (exclusive of or Prospectus, or any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any 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.
(hj) Prior 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 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 Representative Representatives such further information, certificates and documents as the Representative they may reasonably request.
(il) 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.
(j) 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 Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued as of Company and authenticated by the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatenedTrustee. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriterstheir 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
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, Certificates pursuant to this Agreement shall be subject in their discretion to the accuracy of and compliance with 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 settlement date pursuant to Section 3 hereofTime, to the accuracy of the statements of the Company Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) At the Closing Time, you shall have received:
(1) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of Xxxxxx X. Xxxxxxxxx, Vice President and Deputy General Counsel of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letters for each of the other Underwriters to the effect set forth in Exhibit A hereto.
(2) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for the Company, 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 to the effect set forth in Exhibit B hereto.
(3) An opinion, dated the day of the Closing Time, of Debevoise & Xxxxxxxx LLP, special counsel for the Company, 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 to the effect set forth in Exhibit C hereto.
(4) An opinion, dated the day of the Closing Time, of Xxxxxxx & Xxxxxxx LLP, counsel for U.S. Bank Trust National Association, as the Trustee, Subordination Agent and Loan Trustee under the Indentures and Paying Agent 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 to the effect set forth in Exhibit D hereto.
(5) An opinion, dated the day of the Closing Time, of Xxxxxxx & Xxxxxxx LLP, counsel for U.S. Bank National Association, as the Escrow Agent 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 to the effect set forth in Exhibit E hereto.
(6) An opinion, dated the day of the Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., tax counsel for the Trustee, 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 to the effect set forth in Exhibit F-1 hereto.
(7) An opinion, dated the day of the Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Trustee, 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 to the effect set forth in Exhibit F-2 hereto.
(8) An opinion, dated the day of the Closing Time, of Christian de Le Hir, counsel for the Liquidity Provider, 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 to the effect set forth in Exhibit G hereto.
(9) An opinion, dated the day of the Closing Time, of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Liquidity Provider, 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 to the effect set forth in Exhibit H hereto.
(10) An opinion, dated the day of the Closing Time, of Xxxx X. Xxxxxxxxxx, in-house counsel for the Depositary, 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 to the effect set forth in Exhibit I hereto.
(11) An opinion, dated the day of the Closing Time, of Xxxxx Xxxx LLP, New York counsel for the Depositary, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit J hereto and to such further effect as counsel to the Underwriters may reasonably request.
(12) An opinion, dated the day of the Closing Time, from Shearman & Sterling LLP, counsel for the Underwriters, with respect to the issuance and sale of the Certificates, the Pricing Disclosure Package, the Prospectus and other related matters as you may reasonably require.
(b) The ProspectusProspectus shall have been filed with the 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 3(a) hereof; the final term sheet contemplated by Section 3(a) hereof, and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required periods prescribed for such filings by Rule 424(b)433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, counsel for the Companyinitiated or, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate knowledge of the Company, signed threatened by the Chief Executive Officer Commission and the principal financial or accounting officer no notice of objection of the Company, dated the Closing Date, Commission 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 use of the Registration Statement or any notice objecting post-effective amendment thereto pursuant to its use has been issued and no proceedings for that purpose Rule 401(g)(2) under the Act shall have been instituted received by the Company; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated 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 knowledge 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 threatened 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 Xxxxxxxxx to have furnished to the 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 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 all requests for additional information by the Commission thereunder and that they shall have performed a review of the audited financial statements of the Company for the period October 24, 2013 (inception) been complied with to November 20, 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 Commissionyour reasonable satisfaction;
(iic) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial On 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 (f) include any supplement thereto at after the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)hereof, there shall not have been (i) any change or decrease decrease, specified in the letter or letters referred to in paragraph (fd) of this Section 6 4 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business or properties of the CompanyCompany and its subsidiaries, whether or not arising from transactions in the ordinary course of businesstaken as a whole, except as set forth in or contemplated in the 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 Representativeyour reasonable judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities Certificates as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Pricing Disclosure Package and the Prospectus (exclusive Prospectus; and you shall have received a certificate of any supplement thereto).
(h) Prior the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Time, to the Closing Dateeffect that (i) there has been no such material adverse change, in the case of clause (ii) above, in the Company shall have furnished and its subsidiaries, (ii) that the representations and warranties in Section 1 hereof and also the representations and warranties of the Company contained in the Operative Documents are true and correct with the same force and effect as though made at such Closing Time, and as to the Representative such further information, certificates and documents other matters as the Representative you may reasonably request.
(d) At the time of the execution of this Agreement and also at the Closing Time, (i) FINRA Ernst & Young LLP shall not have raised any objection furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you, 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 the Underwriters with respect to the fairness or reasonableness financial statements and certain financial information contained in the Pricing Disclosure Package and the Prospectus, and (ii) you shall have received a certificate of Xxxx Xxxxxx, Senior Vice President and Chief Financial Officer of the underwriting or other arrangements of Company, dated the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered a letter from each Participantrespective dates thereof, substantially in the form of Exhibit C K hereto.
(me) At least one Business Day prior The Company shall have furnished to you and your counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the Closing Datepurpose of enabling such counsel to pass upon the matters to be covered by the opinions required to be delivered under subsections (a)(11) and (a)(12) of this Section 4 and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the Sponsor shall have caused performance of any covenant by the purchase price for the Private Placement Warrants Company theretofore to be funded into performed, or the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If compliance with any of the conditions herein contained.
(f) Each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the day of the Closing Time, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, Underwriter, trustee, partner, director or person performing similar functions.
(g) At Closing Time, the Certificates shall be rated at least A- by Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business (“S&P”) and Baa2 by Xxxxx’x Investors Service, Inc. (“Moody’s”), respectively, and such ratings shall not be under surveillance or review with possible negative implications.
(h) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company’s unsecured debt securities 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, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s unsecured debt securities. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the provisions hereof only if they are in all respects reasonably satisfactory to you and your counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, other than by reason of any default by any Underwriter, such failure to fulfill a condition may be waived by you, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not may be reasonably satisfactory in form and substance terminated by you by notice to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or Company at any time at or prior to, to the Closing Date by the Representative. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in writing or by telephone or facsimile confirmed Sections 5, 7 and 10 hereof, which provisions shall remain in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Shares shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Initial Sale Time, the Closing Date and any settlement date pursuant to Section 3 hereofthe Option Closing Date, as the case may be, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofof this Section, to the performance by the Company of its obligations hereunder hereunder, and to the following additional conditions:
(a) The Prospectus, 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 Shares shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatened.threatened by the Commission;
(b) The Company Representatives shall have requested and caused Xxxxxxxxx Xxxxxxx LLPreceived from Xxxxxx & Xxxxxx L.L.P., counsel for the Company, to have furnished to the Representative its opinions their opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representative Representatives, to the effect set forth in the form attached as Exhibit A Annex I hereto.;
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx the General Counsel to the Company, his opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representatives, to the effect set forth in Annex II hereto;
(d) The Representatives shall have received from Xxxxx & Xxxx LLPXxxxx L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives 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 Representative Representatives 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 or the Option Closing Date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement 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 in all material respects on and as of the Closing Date or the Option Closing Date, as the case may be, with the same effect as if made on the Closing Date or the Option Closing Date, as the case may be, and the Company has 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 or the Option Closing Date, as the case may be;
(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 Shares has been issued and no proceedings for that purpose have been instituted orbeen, to the Company’s knowledge, threatenedinstituted or threatened by the Commission; and
(iii) since 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 Effectmaterial adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished Final Prospectus, as amended or supplemented prior to the Representatives a certificate signed by the Secretary Execution Time, 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 described in such certificate shall be attached to such certificate.;
(f) The Company shall have requested and caused Xxxxxxxxx to have furnished to the Representative, at At the Execution Time and at the Closing Date and the Option Closing Date, lettersas the case may be, the Representatives shall have received from Ernst & Young LLP a letter or letters dated respectively as of the Execution Time and as of the Closing Datesuch date or dates, in form and substance reasonably satisfactory to the RepresentativeRepresentatives, 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 October 24, 2013 (inception) to November 20, 2013, 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 Commissionany Issuer Free Writing Prospectus;
(iig) they At the Execution Time and the Closing Date and the Option Closing Date, as the case may be, the Representatives shall have performed certain other specified procedures as received from NSAI a result of which they determined that certain information of letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Underwriters covering the matters described in Annex III;
(h) The Representatives shall have received an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from agreement for the general accounting records benefit of the Company) Underwriters in the form set forth as Annex IV hereto, signed by each director and executive officer listed in the Registration Company’s Proxy 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 filed with the accounting records of Commission on April 5, 2012 (each a “Lock-Up Agreement”), other than any such director or officer who has resigned before the CompanyExecution Time, excluding and each such Lock-Up Agreement shall be in full force and effect on the Closing Date and any questions of legal interpretation; andOption Closing Date, as the case may be;
(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 (f) include any supplement thereto at the date of the letter.
(gi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)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 (f) of this Section 6 5 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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 RepresentativeRepresentatives, 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)Statement, the Statutory Final Prospectus and the Prospectus (exclusive of any supplement thereto).Issuer Free Writing Prospectus;
(hj) The Shares shall have been approved for listing on the New York Stock Exchange, subject only to notice of issuance at or prior to the Closing Date or the Option Closing Date, as the case may be; and
(k) Prior to the Closing Date or the Option Closing Date, as the case may be, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative and counsel for the UnderwritersRepresentatives, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder. The documents required to be delivered by this Section 6 5 shall be delivered to the offices of Xxxxxx & Xxxxxx L.L.P. at the office of Akin Gump Xxxxxxx Xxxxx & 0000 Xxxx LLPXxxxxx, counsel for the UnderwritersDallas, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, Texas 75201 on the Closing Date and any Option Closing Date, as applicable, or such other place as the Representatives shall so instruct.
Appears in 1 contract
Samples: Underwriting Agreement (Pioneer Natural Resources Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company 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 Xxxxxxxxx Xxxxxxx Winston & Sxxxxx LLP, 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 form attached as Exhibit A heretoRepresentative.
(c) The 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 form and substance acceptable to the Representative.
(d) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Weil, Gotshal & Xxxx Mxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representative a certificate of the Company, signed by the a Co-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, 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 Representative a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate Memorandum and Articles of Incorporation and the Bylaws 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.
(fg) The Company shall have requested and caused Xxxxxxxxx Withum to have furnished to the 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 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 October 24August 11, 2013 2016 (inception) through [●], 2016, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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;
(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 Representative may reasonably request. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters.
(l) 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 (1) Business Day prior to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded deposited into the Trust Account.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx Weil, Gotshal & Xxxx Mxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx700 Xxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxXX, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (GTY Technology 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 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 Xxxxxxxxx Xxxxxxx Ellenoff Xxxxxxxx & Schole LLP, 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 form attached as Exhibit A heretoRepresentative.
(c) The Representative shall have received from Akin Gump Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the 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 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 Xxxxxxxxx to have furnished to the 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 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 October September 24, 2013 (inception) to November 20October 11, 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(ih) 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.
(ji) 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 Representative.
(kj) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Subscription Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider LettersLetters and the Administrative Services Agreement.
(l) 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.
(mk) 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 funded wired to the Company and the Company shall direct the escrow agent to deposit such funds into the Trust AccountAccount and to hold such funds in escrow therein.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx, Xxx Xxxx, Xxx XxxxXxxxxxxxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Hennessy Capital 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, Certificates pursuant to this Agreement shall be subject in their discretion to the accuracy of and compliance with 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 settlement date pursuant to Section 3 hereofTime, to the accuracy of the statements of the Company Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) At the Closing Time, you shall have received:
(1) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of Xxxx X. Xxxxxxxx, Assistant General Counsel of the Company, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion and letter for each of the other Underwriters to the effect set forth in Exhibit A hereto.
(2) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of Xxxxxxxxxx, Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion and letter for each of the other Underwriters to the effect set forth in Exhibit B hereto.
(3) An opinion, dated the day of the Closing Time, of Debevoise & Xxxxxxxx LLP, special counsel for the Company, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit C hereto.
(4) An opinion, dated the day of the Closing Time, of Xxxxxxx & Xxxxxxx LLP, counsel for U.S. Bank Trust National Association, as the Trustee, Subordination Agent and Loan Trustee under the Indentures and Paying Agent in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit D hereto.
(5) An opinion, dated the day of the Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., tax counsel for the Trustee, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit E-1 hereto.
(6) An opinion, dated the day of the Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Trustee, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit E-2 hereto.
(7) An opinion, dated the day of the Closing Time, of Xxxxxxx Xxxxxx, Senior Legal Counsel for the Liquidity Provider, in form and substance reasonably satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit F hereto.
(8) An opinion, dated the day of the Closing Time, of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, special New York counsel for the Liquidity Provider, in form and substance satisfactory to you, together with signed or reproduced copies of such opinion for each of the other Underwriters to the effect set forth in Exhibit G hereto and to such further effect as counsel to the Underwriters may reasonably request.
(9) An opinion, dated the day of the Closing Time, from Milbank LLP, counsel for the Underwriters, with respect to the issuance and sale of the Certificates, the Pricing Disclosure Package, the Prospectus and other related matters as you may reasonably require.
(b) The ProspectusProspectus shall have been filed with the 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 (without giving effect to Rule 424(b)(8)) and in accordance with Section 3(a) hereof; the final term sheet contemplated by Section 3(b) hereof, and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required periods prescribed for such filings by Rule 424(b)433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, counsel for the Companyinitiated or, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate knowledge of the Company, signed threatened by the Chief Executive Officer Commission and the principal financial or accounting officer no notice of objection of the Company, dated the Closing Date, Commission 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 use of the Registration Statement or any notice objecting post-effective amendment thereto pursuant to its use has been issued and no proceedings for that purpose Rule 401(g)(2) under the Act shall have been instituted received by the Company; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated 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 knowledge 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 threatened 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 all requests for additional information by the Commission shall have been complied with to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateyour reasonable satisfaction.
(fc) The Company shall have requested and caused Xxxxxxxxx to have furnished to the 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 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 October 24, 2013 (inception) to November 20, 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;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial On 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 (f) include any supplement thereto at after the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)hereof, there shall not have been (i) any change or decrease decrease, specified in the letter or letters referred to in paragraph (fd) of this Section 6 4 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business or properties of the CompanyCompany and its subsidiaries, whether or not arising from transactions in the ordinary course of businesstaken as a whole, except as set forth in or contemplated in the 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 Representativeyour reasonable judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities Certificates as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Pricing Disclosure Package and the Prospectus (exclusive Prospectus; and you shall have received a certificate of any supplement thereto).
(h) Prior the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Time, to the Closing Dateeffect that (i) there has been no such material adverse change contemplated by clause (ii) above, in the Company shall have furnished and its subsidiaries, (ii) that the representations and warranties in Section 1 hereof and also the representations and warranties of the Company contained in the Operative Documents are true and correct with the same force and effect as though made at such Closing Time, and as to the Representative such further information, certificates and documents other matters as the Representative you may reasonably request.
(id) FINRA At the time of the execution of this Agreement and also at the Closing Time, Ernst & Young LLP shall not have raised any objection furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you, 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 the Underwriters with respect to the fairness or reasonableness of financial statements and certain financial information contained in the underwriting or other arrangements of Pricing Disclosure Package and the transactions contemplated herebyProspectus.
(je) The Securities Company shall have furnished to you and your counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the purpose of enabling such counsel to pass upon the matters to be duly listed subject covered by the opinions required to notice be delivered under subsection (a)(9) of issuance on this Section 4 and in order to evidence the NASDAQ Capital Marketaccuracy and completeness of any of the representations, satisfactory evidence warranties or statements, the performance of any covenant by the Company theretofore to be performed, or the compliance with any of the conditions herein contained.
(f) Each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the date hereof and the Closing Date, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, Underwriter, trustee, partner, director or person performing similar functions.
(g) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company’s unsecured debt securities by either nationally recognized statistical rating organization that is rating the Class AA Certificates or Class A Certificates, as set forth in the Issuer Free Writing Prospectus used by the Underwriters to confirm sales, the form of which shall be agreed to between the Company and the Underwriters, and (ii) neither such nationally recognized statistical rating organization shall have been provided to publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the RepresentativeCompany’s unsecured debt securities.
(kh) On The Class AA Certificates and the Effective Date, the Company Class A Certificates shall have delivered received ratings equal to or higher than the Representative executed copies of ratings indicated in the Trust Agreement, free writing prospectus identified as Item (a) in Schedule IV hereto from the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Lettersnationally recognized statistical rating organizations named therein.
(li) On At or prior to the Execution DateClosing Time, the Company each Indenture and each Participation Agreement shall have caused to be been 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof Company and each other respective party thereto, and copies thereof shall have been issued as of furnished to you and your counsel. All such opinions, certificates, letters and documents shall be deemed to be in compliance with the Closing Date, provisions hereof only if they are in all respects reasonably satisfactory to you and no proceedings for that purpose shall have been instituted or shall have been threatenedyour counsel. If any of the conditions condition specified in this Section 6 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, other than by reason of any default by any Underwriter, such failure to fulfill a condition may be waived by you, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not may be reasonably satisfactory in form and substance terminated by you by notice to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or Company at any time at or prior to, to the Closing Date by the Representative. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in writing or by telephone or facsimile confirmed Sections 5, 7 and 10 hereof, which provisions shall remain in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement 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 Company pursuant to Rule 433(d) shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have requested and caused Xxxxxxxxx Xxxxxxx received the favorable opinion of (i) Xxxxx Lord LLP, counsel for the Company, to have furnished to the Representative its opinions dated as of the Closing Date and addressed to the Representative in Date, the form of which is attached as Exhibit A hereto.A, and (ii) Xxxxxxxx & Wedge, Nevada counsel of the Company, dated as of the Closing Date, the form of which is attached as Exhibit B.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx the favorable opinion of Xxxxxx, Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated as of the Closing Date and addressed to the RepresentativeDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative 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 Representative Representatives a certificate of the Company, signed by the Chairman of the Board, the Chief Executive Officer or the President and the principal financial Chief Financial Officer or accounting officer Chief Accounting Officer of the Company, dated as of the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment amendments or supplement supplements thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) Subsequent to the representations Execution Time, there has not occurred any Material Adverse Effect;
(ii) the representations, warranties and warranties covenants of the Company in this Agreement were true and correct on and as of the date hereof and are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and Date; and
(iii) the Company has complied with all the agreements hereunder 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 Representatives shall have furnished to received from Ernst & Young LLP, the Representatives a certificate signed by the Secretary or Assistant Secretary of independent registered public accounting firm for the Company, dated the Closing Date, certifying (i) that at the Amended Execution Time, a letter (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Execution Time, in form and Restated Certificate of Incorporation and substance satisfactory to the Bylaws Representatives, covering the financial information of the Company are true included or incorporated by reference in the Registration Statement and completethe Preliminary Prospectus and other customary information, 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 Xxxxxxxxx to have furnished to the Representative, at the Execution Time and at the Closing Date, lettersa letter (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming to the effect that they are a reaffirm the statements made in the letter furnished by them pursuant to clause (i), except that (A) it shall cover the financial information included in or incorporated by reference in the Final Prospectus and any amendment or supplement thereto and (B) the specified date referred to therein for carrying out of procedures shall be no more than three business days prior to the Closing Date.
(f) The Representatives shall have received from KPMG LLP, the independent registered public accounting firm for Xxxxx Park Energy LLC and its subsidiaries, (i) at the Execution Time, a letter (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Execution Time, in form and substance satisfactory to the Representatives, covering the financial information of Xxxxx Park Energy LLC included or incorporated by reference in the Registration Statement and the Preliminary Prospectus and other customary information, and (ii) at the Closing Date, a letter (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing Date, in form and substance satisfactory to the Representatives, to the effect that is they reaffirm the statements made in the letter furnished by them pursuant to clause (i), except that (A) it shall cover the financial information included in or incorporated by reference in the Final Prospectus and any amendment or supplement thereto and (B) the specified date referred to therein for carrying out of procedures shall be no more than three business days prior to the Closing Date.
(g) The Representatives shall have received from Xxx Xxxxxxx & Associates, Inc., independent petroleum consultants with respect to the Company within and its subsidiaries, (i) at the meaning Executive Time, a letter, dated as of the Act Execution Time, in form and substance satisfactory to the Representatives, covering the reserve information included or incorporated by reference in the Registration Statement and the Exchange Act Preliminary Prospectus and other customary information, and (ii) at the applicable rules Closing Date, a letter, dated as of the Closing Date, in form and regulations adopted by substance satisfactory to the Commission thereunder and Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to clause (i), except that it shall cover the reserve information included or incorporated by reference in the Final Prospectus and any amendment or supplement thereto.
(h) The Representatives shall have performed received from Netherland, Xxxxxx & Associates, Inc., independent reserve engineers for the Company and its subsidiaries, (i) at the Execution Time, a review reserve report confirmation letter, dated as of the audited financial Execution Time, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in such letters with respect to its audits of the reserves of the Company for referred to in the period October 24Disclosure Package and (ii) at the Closing Date, 2013 a reserve report confirmation letter, dated as of the Closing Date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to clause (inception) to November 20i), 2013, except that it shall cover the reserve information included or incorporated by reference in the Final Prospectus and stating in effect that:any amendment or supplement thereto.
(i) The Representatives shall have received from the Chief Financial Officer of the Company, (i) at the Execution Time, a certificate, dated as of the Execution Time, in their opinion form and substance satisfactory to the audited Representatives, providing “management comfort” with respect to certain financial statements and financial statement schedules information included or incorporated by reference in the Registration Statement, the Statutory Prospectus Statement and the Prospectus Preliminary 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) they have performed certain other specified procedures at the Closing Date, a certificate, dated 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 Closing Date, in form and substance satisfactory to the Representatives, to the effect that the Chief Financial Officer reaffirms the statements made in the Registration Statementcertificate furnished pursuant to clause (i), except that it shall cover the Statutory financial statements and financial information included or incorporated by reference in the Final 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 (f) include any amendment or supplement thereto at the date of the letterthereto.
(gj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (e), paragraph (f), paragraph (g), paragraph (h) or paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the RepresentativeRepresentatives, 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), or (ii) in the sole judgment of the Representatives, any Material Adverse Effect.
(hk) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(il) 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 Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or other arrangements 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 transactions contemplated herebypossible change.
(jm) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the NASDAQ Capital MarketNew York Stock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust AccountRepresentatives.
(n) No order preventing or suspending The Representatives shall have received an agreement for the sale benefit of the Units Underwriters in any jurisdiction designated the form set forth as Exhibit C hereto, signed by the Representative pursuant to Section 5(kk) hereof shall have been issued as each of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatenedpersons listed on Exhibit D hereto. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. Notice of such cancellation shall be given to the Company in writing (including by electronic mail) 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 Akin Gump Xxxxxxx Xxxxx Xxxxxx, Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at Xxx 0000 Xxxx Xxxxxx XxxxSuite 2100, Xxx XxxxDallas, Xxx Xxxx, 00000, unless otherwise indicated hereinTexas 75201 or sent by electronic mail to XXxxxxxx@xxxxxxxxxx.xxx, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 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 Xxxxxxxxx Xxxxxxx Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Company, to have furnished to the Representative its opinions opinion and negative assurance letter, dated the Closing Date and any settlement date, as applicable, and addressed to the Representative Representative, in form and substance reasonably acceptable to the form attached as Exhibit A heretoRepresentative.
(c) The 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 any settlement date, as applicable, and addressed to the Representative, in form and substance reasonably acceptable to the Representative.
(d) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, dated the Closing Date and any settlement date, as applicable, and addressed to the 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 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 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 DateDate and any 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, as well as each electronic “road show show” as defined in Rule 433(h) of the Act used in connection with the offering of the SecuritiesOffering, 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 Datesuch 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 Representative a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing DateDate and any settlement date, as applicable, certifying (i) that the Amended and Restated Certificate of Incorporation and the Bylaws of the Company are Charter is true and complete, have has not been modified and are 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.
(fg) The Company shall have requested and caused Xxxxxxxxx Withum to have furnished to the Representative, at the Execution Time and at Time, the Closing DateDate and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of Time, the Closing DateDate and settlement date, as applicable, in form and substance satisfactory to the 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 October 24May 12, 2013 2020 (inception) through May 19, 2020, provided that the cutoff date shall not be more than two (2) Business Days prior to November 20such Execution Time, 2013Closing 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; 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 (f(g) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f(g) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), 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) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Closing Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Forward Purchase Agreement, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider LettersLetter.
(l) On At least one (1) Business Day prior to the Execution DateClosing Date or a settlement date, as applicable, the Company shall have caused to be duly executed and delivered a letter the required proceeds from each Participant, substantially in the form sale 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 funded deposited into the Trust AccountAccount 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.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 electronically, or if by mail, at the office of Akin Gump Xxxxxxx Xxxxx Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (CC Neuberger Principal Holdings 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, 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 settlement date pursuant to Section 3 hereofDate, 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 threatenedthreatened 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 Xxxxxxx X. Xxxxxxxx, Vice President and caused Xxxxxxxxx Xxxxxxx LLPGeneral Counsel of the Company, substantially in the form included as Exhibit A, and Xxxxx Day, Chicago, Illinois, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative substantially in the form attached included as Exhibit A hereto.B.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, New York, New York, counsel for the Underwriters, such opinion or opinions, opinions dated the Closing Date and addressed to the 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 such matters as the Representative 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 Representative 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 ProspectusStatement, 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 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 Effectmaterial 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 the Prospectus (exclusive of any supplement thereto)or Prospectus.
(e) The Company Representatives shall have furnished to received letters from Deloitte & Touche LLP, independent public accountants for the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, Company (dated the date of this Agreement and 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 Commissionrespectively, 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 Xxxxxxxxx to have furnished to the 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 Representative, confirming Representatives) 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 October 24thereunder, 2013 (inception) to November 20, 2013, 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 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 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 (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 CompanyCompany 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; and
(iii) statements as have found such information and percentages to such other matters incident to be in agreement with the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (f) include any supplement thereto at the date relevant accounting and financial information of the letterCompany referred to in such letter in the description of the procedures performed by them.
(gf) 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 change or decrease specified in the letter or letters referred to in paragraph (fe) 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 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).
(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 general affairs, management, business, financial conditionposition, earningsstockholder’s equity, business results of operations or properties 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 Representative, 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 this Agreement and the Prospectus.
(i) No Representative shall have advised the Company that the Registration Statement (exclusive of or Prospectus, or any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any 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.
(hj) Prior 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 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 Representative Representatives such further information, certificates and documents as the Representative they may reasonably request.
(il) 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.
(j) 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 Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued as of Company and authenticated by the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatenedTrustee. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwriterstheir 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, hereunder 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 Date, the Option Closing Date, if any, and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The If filing the Prospectus, and or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Act or the Securities Act Regulations, the Company shall have been filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required by (without reliance on Rule 424(b424(b)(8) or 164(b) under the Act); and the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof, any Rule 462 Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and issued; no proceedings for that purpose the issuance of such an order shall have been instituted initiated or threatened; and any request of the Commission or the Underwriters for additional information (to be included in the Registration Statement, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Representative shall have received confirmation from Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx P.C. that there are no claims to which its representation has been sought and that are outstanding in respect of the Company.
(c) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLPXxxxxxxx Brog Leinwand Xxxxxx Xxxxxxxx & Xxxxx P.C., securities counsel for the Company, to have furnished to the Representative its opinions their written opinion and Rule 10b-5 negative assurance letter, dated the Closing Date or the Option Closing Date, as applicable, in form and addressed substance reasonably satisfactory to the Representative in the form attached as Exhibit A heretoand its counsel.
(cd) The Representative shall have received from Akin Gump the Rule 10b-5 negative assurance letter of Xxxxxxxxxx Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions’ counsel, dated the Closing Date or the Option Closing Date, as applicable, and addressed to the 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 such matters as the Representative Underwriters may reasonably require, and the Company shall have furnished to such counsel Xxxxxxxxxx Xxxxxxx LLP such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Representative shall have received the opinion of Law Offices of Xxxxxx X. Xxxx, PLLC, special intellectual property counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to the Representative and its counsel.
(f) The Representative shall have received the opinion of Blooston, Mordkofsky, Dickens, Xxxxx & Xxxxxxxxxxx, LLP, general counsel for the Company, dated the Closing Date or the Option Closing Date, as applicable, in form and substance reasonably satisfactory to the Representative and its counsel.
(g) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer Chief Financial Officer of the CompanyCompany or any other officers of the Company acceptable to the Representative in its discretion, dated the Closing Date or the Option Closing Date, as applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Pricing Disclosure Package and the Prospectus and any amendment supplements or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, amendments 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 the Option Closing Date, as applicable, with the same effect as if made on the Closing Date or the Option Closing Date, as applicable, 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 or the Option Closing Date, as applicable;
(ii) no stop order or other order (A) suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof or any amendment thereof, or (B) suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued issued, and no proceedings proceeding for that purpose have has been instituted or, to the Company’s their knowledge, threatened; andis contemplated by the Commission or any state or regulatory body;
(iii) since the date of the most recent financial statements included in the Statutory Prospectus Pricing Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, there has been no Material Adverse EffectChange; and
(iv) the Company has complied with the terms and conditions of this Agreement on its part to be complied with up to the time of closing on the Closing Date or the Option Closing Date, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)applicable,.
(eh) The Company Representative shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary received on and as of the Company, dated Closing Date or the Option Closing Date, certifying (i) that as applicable, satisfactory evidence of the Amended and Restated Certificate of Incorporation and the Bylaws good standing of the Company are true and complete, have not been modified and are its subsidiary in full force and effect, (ii) that writing from the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies applicable Secretary of all correspondence between the Company or State of its counsel and the Commission, and (iv) as to the incumbency jurisdiction of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateorganization.
(fi) The Company shall have requested and caused Xxxxxxxxx the Auditors to have furnished to the Representative, at the Execution Time and at the Closing Date or the Option Closing Date, lettersas applicable, letters (which may refer to letters previously delivered to the Representative), dated respectively as of the Execution Time and as of the Closing DateDate and any settlement date, in form and substance satisfactory to the Representative, confirming that they are a each is an independent registered public accounting firm that is independent with respect to the Company within the meaning of the Securities Act and the Exchange Act and covering, without limitation, in the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review case of the Former Auditor, the Company’s audited financial statements as of and for the year ended December 31, 2014, and in the case of the Company for Current Auditor, the period October 24, 2013 (inception) to November 20, 2013, and stating in effect that:
(i) in their opinion the Company’s audited financial statements as of and the year ended December 31, 2015, and the various financial statement schedules included disclosures related thereto contained in the Registration Statement, the Statutory Preliminary Prospectus, the Prospectus and the Prospectus Issuer Free Writing Prospectuses, if any.
(j) The Company shall have requested and reported on by them comply caused the Current Auditor to have furnished to the Representative, at the Execution Time and at the Closing Date or the Option Closing Date, as applicable, letters (which may refer to form in all material respects with letters previously delivered to the applicable accounting requirements Representative), dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the Representative, confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the related rules Exchange Act and regulations adopted by the Commission;
(ii) they have performed covering, without limitation, IMT’s financial statements and certain other specified procedures as a result of which they determined that certain financial 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 contained in the Registration Statement, the Statutory Preliminary Prospectus, the Prospectus and the Issuer Free Writing Prospectuses, if any.
(k) The Company shall have requested and caused the Vislink Auditor to have furnished to the Representative, at the Execution Time and at the Closing Date or the Option Closing Date, as applicable, letters (which may refer to letters previously delivered to the Representative), dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the Representative, confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and the Exchange Act and covering, without limitation, Vislink’s financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the ProspectusIssuer Free Writing Prospectuses, 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 (f) include any supplement thereto at the date of the letterif any.
(gl) Subsequent 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)Prospectus, there shall not have been (iA) any change or decrease specified in the letter or letters referred to in paragraph (fh) of this Section 6 4 or (iiB) any changeMaterial Adverse Change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (iA) or (iiB) above, is, in the sole judgment of the 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 Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(hm) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(n) Prior to the Closing Date or the Option Closing Date, as applicable, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative Underwriters may reasonably request.
(io) FINRA The Company shall not have raised any objection filed a Listing of Additional Shares form with respect NASDAQ governing the Shares, the Conversion Shares, and the Warrant Shares to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated herebybe listed thereunder.
(jp) (RESERVED)
(q) The Securities Certificate of Designation shall have been filed with the Secretary of State of Delaware and shall be duly listed subject to notice effective; a filed copy of issuance on the NASDAQ Capital Market, satisfactory evidence Certificate of which Designation shall have been provided to the RepresentativeUnderwriters and its counsel.
(kr) At the Execution Time, the Company shall have furnished to the Representative Lock-Up Agreements executed by the Lock-Up Parties.
(s) On the Effective Closing Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of the conditions specified in this Section 6 4 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 4 shall be delivered at the office of Akin Gump Xxxxxxxxxx Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated hereinthe Closing Location, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the several Underwriters to purchase and pay for the Underwritten Securities and the Option Securities, as the case may be, shall Offered Notes will be subject to the accuracy of the representations and warranties on the part of the Company contained Bank and the Depositor herein on the date hereof and as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of officers of the Company Bank and the Depositor made in any certificates pursuant to the provisions hereof, to the performance by each of the Company Bank and the Depositor of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) On or prior to the date hereof, a nationally recognized independent public accounting firm shall have furnished to the Representative a letter (a “Procedures Letter”), dated the date of this Agreement verifying the accuracy of such financial and statistical data contained in the Preliminary Prospectus and the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have also received a letter dated the Closing Date confirming the Procedures Letter and providing additional comfort on such new data.
(b) The Prospectus, Prospectus and any supplement thereto, amendments and supplements thereto shall have been filed in the manner and within the time period required by Rule 424(b)) of the Rules and Regulations; the Depositor shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; and prior to the Closing Date, 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 Xxxxxxxxx Xxxxxxx LLP, 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 A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx opinions, dated the Closing Date and reasonably satisfactory, when taken together, in form and substance to the Representative, of Xxxxx & Xxxx Xxxxx LLP, special counsel to the Bank and the Depositor, and [Xxxxxxxx, Xxxxxx & Finger, P.A.], special counsel to the Issuer, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement. Such opinions may contain such assumptions, qualifications and limitations as are usual and customary in opinions of this type.
(d) The Representative shall have received an opinion or opinions of Xxxxx Xxxxx LLP, special counsel to the Bank and the Depositor, dated the Closing Date and reasonably satisfactory in form and substance to the Representative, with respect to (i) certain matters relating to the treatment by the Federal Deposit Insurance Corporation of the transfer of the Receivables from the Bank to the Depositor, (ii) a grant of a security interest in the Receivables to the Indenture Trustee and (iii) the perfection of the Indenture Trustee’s security interest in the Receivables. Such opinion or opinions may contain such assumptions, qualifications and limitations as are usual and customary in opinions of this type.
(e) The Representative shall have received from [ ], counsel to the Underwriters, such opinion or opinions, dated the Closing Date and addressed satisfactory in form and substance to the Representative, with respect to the issuance and sale validity of the SecuritiesOffered Notes, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company Depositor shall have furnished or caused to be furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. Such opinion or opinions may contain such assumptions, qualifications and limitations as are usual and customary in opinions of this type.
(df) The Company Representative shall have furnished received an opinion of Xxxxx Xxxxx LLP, special tax counsel to the Bank and the Depositor, dated the Closing Date and reasonably satisfactory in form and to the effect (a) that under current United States federal income tax law the Offered Notes (other than any Offered Notes, if any, retained by the Issuer or a person considered to be the same person as the Issuer for United States federal income tax purposes) will be characterized as indebtedness, the Issuer will not be classified as an association taxable as a corporation, the Issuer will not be treated as a publicly traded partnership taxable as a corporation for United States federal income tax purposes and (b) that the statements made in the Preliminary Prospectus and the Prospectus under the caption “Material Federal Income Tax Consequences,” subject to the qualifications set forth in the Preliminary Prospectus and the Prospectus and insofar as they purport to constitute summaries of matters of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the United States federal income tax matters described therein. Such opinion may contain such assumptions, qualifications and limitations as are usual and customary in opinions of this type.
(g) The Representative shall have received an opinion of [Xxxxxxxx, Xxxxxx & Finger, P.A.], special counsel to the Owner Trustee, and such other counsel reasonably satisfactory to the Representative a certificate and its counsel, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement. Such opinion may contain such assumptions, qualifications and limitations as are usual and customary in opinions of this type.
(h) If the applicable Ratings Issuer Free Writing Prospectus sets forth any requirements as to the ratings of the CompanyOffered Notes, signed by the Chief Executive Officer and the principal financial or accounting officer of the CompanyRepresentative shall have received evidence satisfactory to it that such requirements have been met.
(i) The Representative shall have received certificates, dated the Closing Date, of an attorney-in-fact, a Vice President or more senior officer of the Bank and the Depositor in which such person, to the effect best of his or her knowledge after reasonable investigation, shall state 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 Bank and the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with Date, (ii) the same effect as if made on the Closing Date Bank and the Company has Depositor have 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;
, (iiiii) the representations and warranties of the Bank, as Servicer, in the Servicing Agreement and the Depositor, in the Sale Agreement and/or Trust Agreement, are true and correct as of the dates specified in the applicable agreement, (iv) 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 oror are threatened by the Commission, (v) subsequent to the Company’s knowledge, threatened; and
(iii) since the date Time of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Sale, there has been no Material Adverse Effect, material adverse change in the financial position or results of operation of the Bank’s automotive finance business except as set forth in or contemplated in by the Statutory Prospectus Time of Sale Information and the Prospectus or as described in such certificate and (exclusive vi) the Prospectus does not contain any untrue statement of any supplement thereto)a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ej) 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 Xxxxxxxxx to have furnished to the 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 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 October 24, 2013 (inception) to November 20, 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;
(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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(h) Prior to On the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which Certificates shall have been provided issued to or at the direction of the Depositor pursuant to the RepresentativeTrust Agreement.
(k) On the Effective Closing Date, the Company Offered Notes shall have been duly executed by the Owner Trustee on behalf of the Issuer, duly authenticated by the Indenture Trustee and delivered to or at the Representative executed copies direction of the Trust Agreement, Bank pursuant to the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider LettersIndenture.
(l) On The Depositor will furnish the Execution DateRepresentative, or cause the Company shall have caused Representative to be duly executed furnished, with such number of conformed copies of such opinions, certificates, letters 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of the conditions specified documents referenced in this Section 6 shall not have been fulfilled when and 7 as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Datereasonably requests.
Appears in 1 contract
Samples: Underwriting Agreement (Chase Auto Receivables LLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securitieshereunder, as to the case may beNotes to be delivered at each Delivery Date, shall be subject subject, in their discretion, to the accuracy of the condition that all representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the other statements of the Company made in any certificates pursuant to herein are, at and as of the provisions hereofdate hereof and each Delivery Date, to true and correct and the performance by condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and to the following additional conditions, unless any such condition is waived in writing by the Representatives:
(a) The Prospectus, and any supplement thereto, Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); each Issuer Free Writing Prospectus shall have been filed with the Commission if required, in the manner and within the time period required by Rule 433; no stop order suspending the effectiveness use of the Registration Statement Prospectus or any notice objecting to its use Issuer Free Writing Prospectus shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatenedinitiated or, to the knowledge of the Company, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) The Company shall have requested and caused Xxxxxxxxx On each Delivery Date, Skadden, Arps, Slate, Xxxxxxx LLP, 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 A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such shall have furnished to you an opinion or opinions, dated the Closing Date and addressed to the Representativesuch dates, with respect to the issuance and sale of the SecuritiesNotes on each such Delivery Date, the Registration Statement, the Statutory Disclosure Package, the Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative you may reasonably requirerequest, and the Company such counsel shall have furnished to received such counsel such documents papers and information as they may reasonably request for the purpose of enabling to enable them to pass upon such matters.
(dc) The On each Delivery Date, the Company shall have furnished to you an opinion and negative assurance statement of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for the Representative a certificate Company, addressed to the Underwriters and dated such Delivery Date, in the form set forth in Exhibit A hereto.
(d) On each Delivery Date, the Company shall furnish to you an opinion of the General Counsel of the Company, signed by addressed to the Chief Executive Officer Underwriters and the principal financial or accounting officer of the Company, dated the Closing such Delivery 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 form set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Exhibit B hereto.
(e) The On each Delivery Date, the Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary you an opinion of Xxxxx & Overy LLP, Investment Company Act counsel for the Company, addressed to the Underwriters and dated the Closing such Delivery Date, certifying (i) that in the Amended and Restated Certificate of Incorporation and the Bylaws of the Company are true and complete, have not been modified and are form set forth 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 certificateExhibit C hereto.
(f) The Company On the date of this Agreement and also at each Delivery Date, KPMG LLP shall have requested and caused Xxxxxxxxx to have furnished to the Representative, at the Execution Time and at the Closing Date, you a letter or letters, dated respectively as the respective dates of the Execution Time and as of the Closing Datedelivery thereof, in form and substance satisfactory to the RepresentativeRepresentatives, 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 and pro forma information of the Company for the period October 24, 2013 (inception) to November 20, 2013, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included contained or incorporated by reference in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus Prospectus.
(g) On the date of this Agreement and reported on by them comply as also at each Delivery Date, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form in all material respects with and substance satisfactory to the applicable accounting requirements Representatives, containing statements and information of the Act type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and the related rules and regulations adopted by the Commission;
(ii) they have performed certain other specified procedures as a result of which they determined that certain financial information of an accounting, financial Convergex and Starboard contained or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth incorporated by reference in the Registration Statement, the Statutory Prospectus Disclosure Package 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 (f) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution earlier of (A) the Initial Time orof Sale and (B) the execution and delivery of this Agreement, if earlierno event or condition of a type described in Section 1(f) of this Agreement shall have occurred or shall exist, the dates as of which information event or condition is given not described in the Registration Statement Disclosure Package Prospectus (exclusive of excluding any amendment thereof), the Statutory Prospectus and or supplement thereto) or the Prospectus (exclusive of excluding any supplement thereto), there shall not have been (i) any change amendment or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) and the effect of which, in any case referred to in clause (i) or (ii) above, is, which in the sole judgment of the Representative, so material and adverse as to make Representatives makes it impractical impracticable or inadvisable to proceed with the offering public offering, sale or delivery of the Securities as Notes at the applicable Delivery Date, on the terms and in the manner contemplated by the Registration Statement (exclusive of any amendment thereof)this Agreement, the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus.
(hi) Prior to the Closing On each Delivery Date, the Company shall have furnished to you a certificate of the Representative Chief Executive, Chief Financial or Chief Accounting Officer of the Company, satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of the date hereof and such further informationDelivery Date, certificates and documents as to the Representative may reasonably request.
performance by the Company of all of its obligations hereunder to be performed at or prior to such Delivery Date, as to the matters set forth in subsections (a), (h), (i) FINRA shall not have raised any objection with respect and (j) of this Section 8 and as to the fairness or reasonableness of the underwriting or such other arrangements of the transactions contemplated herebymatters as you may reasonably and timely request in writing.
(j) The Securities Subsequent to the execution and delivery of this Agreement and prior to each Delivery Date, there shall be duly listed subject to not have occurred any downgrading, nor shall any notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to given of any intended or potential downgrading or of any review for a possible change that does not indicate the Representativedirection of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(k) On the Effective date of this Agreement and also at each Delivery Date, the Company shall have delivered deliver to the Representative executed copies Representatives a certificate of its Chief Financial Officer, dated as of such respective date in 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 Lettersform attached as Exhibit D hereto.
(l) On the Execution DateYou shall have received copies, duly executed by the Company shall have caused to be duly executed and delivered a letter from each Participantthe other party or parties thereto, substantially in of the form of Exhibit C heretoIndenture.
(m) At least one Business Day prior to the Closing You shall have received on and as of such Delivery Date, satisfactory evidence of the Sponsor shall have caused good standing of the purchase price for Company and the Private Placement Warrants to be funded into Significant Subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as you may reasonably request, in each case in writing or any standard form of telecommunication from the Trust Accountappropriate governmental authorities of such jurisdictions.
(n) No action shall have been taken and no statute, rule, regulation or order preventing shall have been enacted, adopted or suspending issued by any federal, state or foreign governmental or regulatory authority that would, at such Delivery Date, prevent the issuance or sale of the Units in Notes; and no injunction or order of any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof federal, state or foreign court shall have been issued as that would, at such Delivery Date, prevent the issuance or sale of the Closing Date, and no proceedings for that purpose Notes.
(o) The Notes shall have been instituted made eligible for clearance and settlement through The Depository Trust Company.
(p) There shall exist no event or condition which would, following the passage of time, constitute a default or an event of default under the Notes or the Indenture.
(q) On or before such Delivery Date, the Representatives and counsel for the Underwriters shall have been threatenedreceived such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. If any of the conditions specified in this Section 6 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwritersits counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing each Delivery Date by the RepresentativeUnderwriters. Notice of such cancellation shall be given to the Company in writing 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 (with written confirmation of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Datereceipt).
Appears in 1 contract
Samples: Underwriting Agreement (Cowen 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, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company made in any certificates delivered by the Company 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 or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed in the manner and within the time period required by Rule 424(b)433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to that would prevent its use use, shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company Representatives shall have requested and caused Xxxxxxxxx Xxxxxxx received from Gxxxxx, Dxxx & Cxxxxxxx LLP, counsel for the Company, to have furnished to at the Representative its request of the Company, an opinion or opinions and 10b-5 statement, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representative in the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Cravath, Swaine & Xxxx Mxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and 10b-5 statement, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the 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 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 mattersRepresentatives.
(d) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting an officer of the CompanyCompany reasonably acceptable to the Representatives, 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 thateffect:
(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, in each case, unless otherwise waived by the Representatives;
(ii) no stop order suspending the effectiveness of the Registration Statement Statement, as amended, or any notice objecting to that would prevent its use has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act 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)Disclosure Package, there has been no Material Adverse Effectmaterial adverse change in the financial condition, earnings, business or properties of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus.
(e) The Company On the date of this Agreement and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a certificate signed by letter or letters dated as of such respective delivery date, in form and substance reasonably satisfactory to the Secretary or Assistant Secretary Representatives, containing statements and information of the Companytype customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Registration Statement, dated the Closing DateDisclosure Package and the Final Prospectus; provided, 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 letters delivered shall use a “cut-off” date no more than three business days prior 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 certificateeach respective delivery date.
(f) The Company shall have requested and caused Xxxxxxxxx to have furnished to the 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 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 October 24, 2013 (inception) to November 20, 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;
(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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement Statement, Disclosure Package and the Final Prospectus (exclusive of any amendment thereof), or supplement on or after the Statutory Prospectus and the Prospectus (exclusive of any supplement theretoExecution Time), there shall not have been (i) any material change or decrease specified in the letter capital stock (other than upon exercise of outstanding stock options) or letters referred to any significant increase in paragraph (f) long-term debt of this Section 6 the Company or its subsidiaries, taken as a whole or (ii) any material adverse change, or any development involving a prospective material adverse change, in or affecting the financial condition, earnings, business or properties of the CompanyCompany and its subsidiaries, whether or not arising from transactions in the ordinary course of businesstaken as a whole, except as set forth in or contemplated in the 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 RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering public offering, sale or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto)Final Prospectus.
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) FINRA Subsequent to the Execution Time, there shall not have raised been any objection decrease in the ratings of any of the Securities or any other debt securities issued or guaranteed by the Company by Moody’s or S&P and neither Moody’s nor S&P shall have publicly announced that it has placed any of such securities under surveillance or review, or has changed its outlook with respect thereto, with negative implications, except as disclosed prior to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated herebyExecution Time.
(ji) 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 Representative.
(k) On the Effective Date, the Company shall have delivered to the 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 eligible for clearance and each of the Insider Letters.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedsettlement through DTC. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled terminated at, or at any time prior to, the Closing Date by the RepresentativeRepresentatives. Notice of such cancellation termination 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Hp 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, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective prior to the Execution Time; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any supplement theretosuch supplement, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested furnished to the Representatives the opinion, dated the Closing Date, in the form and caused Xxxxxxxxx substance as set forth in Exhibit A-1 hereto, and the letter, dated the Closing Date, in the form and substance as set forth in Exhibit A-2 hereto, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, to have furnished or such other counsel reasonably acceptable to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Xxxxxx & Xxxx Bird LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeDate, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or the President or any Vice President and the principal financial or accounting officer or Treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Statement, the Disclosure Package, the Final Prospectus, any supplement or amendments to the Prospectus and any amendment or supplement theretoFinal Prospectus, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since Since the date of the most recent financial statements included in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company At the Execution Time and the Closing Date, Ernst & Young LLP shall have furnished to the Representatives a certificate signed by the Secretary letter or Assistant Secretary letters (which may refer to letters previously delivered to one or more 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 Xxxxxxxxx to have furnished to the Representative, at the Execution Time and at the Closing Date, lettersRepresentatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the RepresentativeRepresentatives, confirming that they are a an independent registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and covering matters that they have performed a review of are ordinarily covered by “comfort letters” to underwriters with respect to the audited financial statements of the Company for the period October 24, 2013 (inception) to November 20, 2013, 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 Final Prospectus; provided, however, that the letter furnished on and reported on by them comply dated 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) they have performed certain other specified procedures as Closing Date shall use 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 “Dilutioncut-off” 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 date no more than four business days prior to the transaction contemplated hereby as the Representatives may reasonably requestClosing Date. References to the Final Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change in the capital stock (other than issuances of capital stock upon exercise of stock options, stock swaps and stock appreciation rights which were outstanding on the date of the latest consolidated balance sheet included or decrease incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus), increase in the consolidated long-term debt or decreases in the consolidated net assets, net current assets or shareowners’ equity of the Company or any decreases in the consolidated net operating revenues or in the total or per share amounts of income before extraordinary items or of consolidated net income of the Company specified in the letter or letters referred to in paragraph (fe) of this Section 6 5 (which letter or letters shall address any such change, increase or decreases from the corresponding amounts contained in the most recent financial statements included in the Registration Statement, the Disclosure Package and the Final Prospectus (exclusive of any amendment thereof or supplement thereto) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor other), 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 Company and the Prospectus (exclusive of any supplement thereto) its subsidiaries the effect of which, which in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company’s debt securities by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation.
(h) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA The Representatives shall not have raised any objection received from counsel, satisfactory to the Representatives, such opinion or opinions, dated the Closing Date, with respect to compliance with the fairness or reasonableness laws of any country, other than the United States, in whose currency Securities are denominated, the validity of the underwriting or Securities, the Prospectus and other arrangements related matters as they may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of the transactions contemplated herebyenabling them to pass upon such matters.
(j) The Securities If indicated in Schedule I hereto as being applicable to the offering of any Securities, the Representatives shall be duly listed subject to notice of issuance on have received an opinion from tax counsel for the NASDAQ Capital MarketCompany, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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 Representatives and each of the Insider Letters.
(l) 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 dated the Closing Date, confirming their opinion as to United States tax matters set forth in the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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 threatenedFinal Prospectus. If any of the conditions specified in this Section 6 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative Representatives and counsel for the Underwritersits 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing 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 Xxxxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Proskauer Rose LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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, 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 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 Xxxxxxxxx Xxxxxx to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24Registration Statement, 2013 (inception) the Statutory Prospectus and the Prospectus, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNYSE, satisfactory evidence of which shall have been provided to the RepresentativeRepresentatives.
(kj) On or prior to the Effective Closing Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Insider Letter, the Registration and Stockholder Rights Agreement and each of the Insider LettersAdministrative Support Agreement.
(k) [Reserved].
(l) 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 $10,400,000 of the purchase price for the Private Placement Warrants to be funded deposited into the Trust AccountAccount and the remaining $3,000,000 to be paid to the Company.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Proskauer Rose LLP, counsel for the Underwriters, at Xxx Xxxxxx XxxxXxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000XX 00000 Attention: Xxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its 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 theretosuch 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) All the Reorganization Transactions, as contemplated by the Reorganization Agreements, shall have been consummated.
(c) Each of the Reorganization Agreements is in full force and effect, and there shall have been no amendments, alterations, modifications or waivers of any provisions thereof since the date of this Agreement.
(d) The Company shall have delivered notice to the holders of the HMP Warrants, stating that such warrants shall be exchanged for Common Stock 30 days from the date of this Agreement and there shall have been no amendments, alterations, modifications or waivers of any provisions of any agreement governing the terms of such exchange since the date of this Agreement.
(e) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLPXxxxxx & Xxxxxx L.L.P., counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinionsopinion, dated the Closing Date and addressed to the 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 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 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 DateRepresentatives, 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 has been duly organized and the Company has complied with all and each of the agreements and satisfied all entities listed on Schedule III to this Agreement (the conditions on its part to be performed "Scheduled Subsidiaries") is validly existing as a corporation or satisfied at or prior limited liability company in good standing under the laws of the jurisdiction in which it is organized (to the Closing Dateextent such concept exists), with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and has the status set forth in Schedule IV hereto set forth opposite the jurisdictions listed in Schedule IV hereto;
(ii) all the outstanding membership interests, shares of capital stock or other ownership interests, as the case may be, of Huntsman Holdings and each Scheduled Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Scheduled Subsidiaries will be owned of record upon the consummation of the Reorganization Transactions by the Company either directly or through wholly owned subsidiaries;
(iii) the Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholder) have been duly and validly authorized, and, when issued upon consummation of the Reorganization Transactions, will be fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized by the Company, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; and the holders of shares of capital stock or other ownership interests, as the case may be, of the Company that will be outstanding upon consummation of the Reorganization Transactions will not be entitled to preemptive or other rights under the Company's charter, by-laws, Applicable Laws or any Applicable Contract to subscribe for the Securities;
(iv) the statements made in the Prospectus under the heading "Material United States Federal Tax Consequences to Non-U.S. Holders of Common Stock," insofar as they purport to be summaries of United States federal income tax laws and regulations or legal conclusions with respect thereto relating to the purchase, ownership and disposition of the Common Stock by non-U.S. holders (as defined therein), constitute accurate summaries thereof in all material respects;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and issued, no proceedings for that purpose have been instituted or, to or threatened and the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus Registration Statement and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in other than 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 Xxxxxxxxx to have furnished to the 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 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 October 24, 2013 (inception) to November 20, 2013, and stating in effect that:
(i) in their opinion the audited financial statements and other financial statement schedules included in the Registration Statementinformation contained therein, the Statutory Prospectus and the Prospectus and reported as to which such counsel need express no opinion) appear on by them their face to comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules thereunder;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) each of the Reorganization Agreements have been duly authorized, executed and delivered by the Company and constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as may be limited by (1) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement of creditors' rights generally, and (2) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (whether arising under a proceeding at law or in equity);
(viii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an "investment company" as defined in the Investment Company Act of 1940, as amended;
(ix) no Governmental Approval (as defined below), which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required in connection with, the execution, delivery or performance by the Company of this Agreement or any Reorganization Agreement, including the issuance and sale of the Securities to the Underwriters (for purposes of such opinion, (i) "Governmental Approval" means any consent, approval, license, authorization or validation of, or filing, qualification or registration with, any Governmental Authority required to be made or obtained by the Company pursuant to Applicable Laws (as defined below), other than any consent, approval, license, authorization, validation, filing, qualification or registration (A) required under federal, state or foreign securities laws, (B) required under the rules and regulations adopted by of the Commission;
NASD or (iiC) they that may have performed certain other specified procedures become applicable as a result of which they determined that certain information the involvement of an accountingany party other than the Company in the transactions contemplated by this Agreement or because of such parties' legal or regulatory status or because of any other facts specifically pertaining to such parties, financial and (ii) "Governmental Authorities" means any court, regulatory body, administrative agency or statistical nature governmental body of the State of New York or the United States of America having jurisdiction over the Company under Applicable Laws);
(which is limited to accountingx) the execution, financial delivery and performance by the Company of this Agreement and each of the Reorganization Agreements, including the issuance and sale of the Securities, and the consummation of any other of the transactions, including the Reorganization Transactions, herein contemplated and the fulfillment of the terms hereof will not (i) conflict with the certificate of incorporation or statistical information derived from the general accounting records bylaws of the Company, (ii) assuming application of the proceeds of the sale of the Securities in the manner set forth in the Registration StatementProspectus, constitute a violation of, or a breach or default under, the Statutory Prospectus terms of any Applicable Contract, or (iii) violate or conflict with, or result in any contravention of, any Applicable Law (provided that such counsel need not express any opinion as to whether the execution, delivery or performance by the Company of this Agreement or any Reorganization Agreement will constitute a violation of, or a default under, any covenant, restriction or provision with respect to financial ratios or tests or any aspect of the financial condition or results of operations of the Company or any of its subsidiaries; for purposes of such opinion, (i) "Applicable Contracts" shall include the Reorganization Agreements and all agreements, contracts and instruments included as exhibits to the Registration Statement and (ii) "Applicable Laws" means the Delaware General Corporation Law (the "DGCL") and those laws, rules and regulations of the State of New York and the Prospectusfederal laws, including rules and regulations of the information set forth under the captions “Dilution” and “Capitalization” United States of America, in each case that, in the Statutory Prospectus experience of such counsel, are normally applicable to transactions of the type contemplated by this Agreement or any of the Reorganization Agreements (other than the United States federal securities laws, state securities or blue sky laws, anti-fraud laws and the Prospectusrules and regulations of the NASD), agrees but without such counsel having made any special investigation as to the applicability of any specific law, rule or regulation). In addition, such counsel shall state that it has participated in conferences with the accounting records officers and other representatives of the Company, excluding representatives of the independent public accountants of the Company and the representatives of and counsel for the Underwriters, at which the contents of the Registration Statement and the Prospectus and related matters were discussed and that, although such counsel has not independently verified, is not passing on, does not assume responsibility for or express any questions opinion regarding (except as set forth in paragraphs (iv) above) the accuracy, completeness or fairness of legal interpretation; and
the statements contained in the Registration Statement or the Prospectus, based on the participation described above in the course of acting as counsel to the Company, no facts have come to the attention of such counsel that have caused such counsel to believe that the Registration Statement (iiiother than (i) the financial statements included therein, including the notes and schedules thereto and the auditors' reports thereon, and (ii) the other financial and accounting data included therein, as to which such counsel need not comment), as of its effective date contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus (other than (i) the financial statements included therein, including the notes and schedules thereto and the auditors' reports thereon, and (ii) the other financial and accounting data included therein, as to which such counsel need not comment), as of its issue date and the Closing Date contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters incident involving the application of laws of any jurisdiction other than the State of Delaware, the State of New York or the Federal laws of the United States, to the transaction contemplated hereby 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 may reasonably requestextent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (fb) shall also include any supplement supplements thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, 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) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing 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 Xxxxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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, 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 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 Xxxxxxxxx Withum to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24January 7, 2013 2021 (date of inception) through March 29, 2021, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) 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 RepresentativeRepresentatives.
(kj) On or prior to the Effective Closing Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Insider Letter, the Registration and Stockholder Rights Agreement and each of the Insider LettersAdministrative Support Agreement.
(k) [Reserved].
(l) 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 $7,000,000 of the purchase price for the Private Placement Warrants to be funded deposited into the Trust AccountAccount and the remaining $3,000,000 to be paid to the Company.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Ropes & Xxxx LLP, counsel for the Underwriters, at Xxx 0000 Xxxxxx Xxxxxx xxx Xxxxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: 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 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 Xxxxxxxxx Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date or the settlement date, as the case may be, and addressed to the Representative Representative, in a form reasonably satisfactory to the form attached as Exhibit A heretoRepresentative.
(c) The Company shall have requested and caused Xxxxxx and Calder (Cayman) LLP, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date or the settlement date, as the case may be, and addressed to the Representative, in a form reasonably satisfactory to the Representative.
(d) The Representative shall have received from Akin Gump Skadden, Arps, Slate, Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the settlement date, as the case may be, and addressed to the 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 Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the 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 DateDate 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, 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 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 Datesuch 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 Xxxxxxxxx Xxxxxx to have furnished to the Representative, at the Execution Time and at the Closing DateDate 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 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 containing statements and information of the audited financial statements type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of the Company for the period October 24Auditing Standards No. 72 (or any successor bulletin), 2013 (inception) with respect to November 20, 2013, and stating in effect that:
(i) in their opinion the audited and unaudited financial statements and certain financial statement schedules included information contained 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) 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” 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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 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).
(h) Prior to the Closing DateDate or the settlement date, as the case may be, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, New York Stock Exchange satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Sponsor Warrant Purchase Agreement, the Securities Assignment AgreementInsider Letter, the Warrant Subscription Agreement, the Escrow Registration Rights Agreement and each of the Insider LettersServices Agreement.
(l) 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 DateDate or the settlement date, as the case may be, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded wired to the Company and the Company shall direct the trustee to deposit such funds into the Trust AccountAccount and to hold such funds in the Trust 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 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.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk5(ii) hereof shall have been issued as of the Closing DateDate or the settlement date, as the case may be, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Andretti 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 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); any material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx Xxxx and Xxxx LLP, counsel for the Company, to have furnished to the Representative its opinions Representatives their opinion, dated the Closing Date and addressed to the Representative Representatives, substantially in the form attached hereto as Exhibit A hereto.B.
(c) The Representative Company shall have requested and caused Proskauer Rose LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit C.
(d) The Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative 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.
(de) The Company shall have furnished to the Representative 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 ProspectusStatement, the Disclosure Package, 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 Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or 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 Xxxxxxxxx PricewaterhouseCoopers LLP to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24, 2013 (inception) to November 20, 2013, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included substantially in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply form 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) 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 Exhibit D. The Company shall have requested and caused Deloitte LLP to have furnished to the Registration StatementRepresentatives, at the Statutory Prospectus Execution Time and at the ProspectusClosing Date, including letters, dated respectively as of the information Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, substantially in the form as 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 (f) include any supplement thereto at the date of the letter.Exhibit E.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment or supplement thereof), the Statutory Prospectus Disclosure Package 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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, the Disclosure Package 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 RepresentativeRepresentatives, 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 Prospectus (exclusive of any amendment or supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(i) 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 Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or other arrangements 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 transactions contemplated herebypossible change.
(j) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the NASDAQ Capital Global Market, and satisfactory evidence of which such actions shall have been provided to the RepresentativeRepresentatives.
(k) On At the Effective DateExecution Time, the Company shall have delivered furnished to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered Representatives a letter from each Participant, substantially in the form of Exhibit C heretoF hereto from each officer and director of the Company and all stockholders and optionholders of the Company addressed to the Representatives.
(ml) At least one Business Day prior The Company shall have furnished to the Closing DateRepresentatives, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued dated as of the Closing DateExecution Time, and no proceedings for that purpose shall have been instituted or shall have been threateneda certificate of the Chief Financial Officer of the Company. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxx LLP, counsel for the Underwriters, at Xxx 0000 Xxxxxx Xxxxxx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxx 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the 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 Company, Operating Partnership and each Selling Shareholder contained herein as of the Execution Timedate hereof, the Closing Date and any settlement date pursuant to Section 3 hereofAdditional Closing Date, as the case may be, to the accuracy of the statements of the Company Company, the Operating Partnership and each Selling Shareholder made in any certificates pursuant to the provisions hereof, to the performance by each of the Company Company, the Operating Partnership and each Selling Shareholder of its such party’s obligations hereunder under this Agreement and to the following additional conditions:
(a) The ProspectusAt the Closing Date or such Additional Closing Date, and any supplement theretoas the case may be, 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 Representatives shall have been issued and no proceedings for that purpose shall have been instituted received the favorable opinion, dated as of Closing Date or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx such Additional Closing Date, as the case may be, of Sidley Austin LLP, counsel for the Company, in form and substance reasonably satisfactory to have furnished 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 Annex B-1 and Annex B-2 hereto and to such further effect as counsel to the Representative its opinions dated Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely: (i) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials reasonably satisfactory to counsel for the Underwriters.
(b) At the Closing Date or such Additional Closing Date, as the case may be, the Representatives shall have received the favorable opinion, dated as of Closing Date or such Additional Closing Date, as the case may be, of Xxxx X. Xxxxx, Executive Vice President, General Counsel and addressed Secretary of the Company, in form and substance reasonably satisfactory to counsel for the Representative Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form attached set forth in Annex C hereto and to such further effect as Exhibit A heretocounsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely as to matters of fact, to the extent she deems proper, on certificates of responsible officers of the Company and public officials reasonably satisfactory to counsel for the Underwriters.
(c) At the Closing Date or such Additional Closing Date, as the case may be, the Representatives shall have received the favorable opinion, dated as of the Closing Date or such Additional Closing Date, as the case may be, of Xxxxxxx LLP, Maryland counsel for the Company, 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 Annex D hereto and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely: (i) as to matters involving the application of laws of any jurisdiction other than the State of Maryland, 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 Company and public officials.
(d) At the Closing Date or such Additional Closing Date, as the case may be, the Representatives shall have received the favorable opinions, dated as of the Closing Date or such Additional Closing Date, as the case may be, of (i) Xxxxx Lovells US LLP, with respect to the Selling Shareholders other than ColCo Strategic Partners, L.P. and Starwood Capital Group Global, L.P., in the form set forth in Annex E-1; (ii) Xxxxxxx, Xxxxxxxxxxx & Xxxxxxxx, LLC, special counsel of Starwood Capital Group Global, L.P., in the form set forth in Annex E-2; (iii) Xxxxxx and Calder, with respect to ColCo Strategic Partners, L.P., in the form set forth in Annex E-3; and (iv) Sidley Austin LLP with respect to the Selling Shareholders in the form set forth in Annex E-4, together with signed or reproduced copies of such opinions for each of the other Underwriters. In rendering each such opinion, as applicable, such counsels may rely (i) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters; and (ii) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(e) The Representative Representatives shall have received from Akin Gump Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, Time of Sale Information and the Prospectus (together with any supplement thereto) and other related matters as the Representative 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.
(df) The Company shall have furnished to the Representative Representatives a certificate of the CompanyChief Executive Officer, signed by the Chief Executive Financial Officer or the Chief Accounting Officer of the Company and the principal financial or accounting Operating Partnership and one additional senior executive officer of the CompanyCompany and the Operating Partnership who is satisfactory to the Representatives, dated the Closing Date or such Additional Closing Date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Time of Sale Information and the 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 and the Operating Partnership in this Agreement are true and correct on and as of the Closing Date or such Additional Closing Date, as the case may be, with the same effect as if made on the Closing Date or such Additional Closing Date, as the case may be, and each of the Company and the Company Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or such Additional Closing Date, as the case may be;
(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 and Time of Sale Information or the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in material adverse effect on the Statutory Prospectus and the Prospectus condition (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 Xxxxxxxxx to have furnished to the 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 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 October 24, 2013 (inception) to November 20, 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;
(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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereofotherwise), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial conditionprospects, earnings, business or properties of the CompanyCompany 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 Time of Sale Information and the Prospectus (exclusive of any supplement thereto).
(g) Each Selling Shareholder shall have furnished to the Representatives a certificate, signed on behalf of such Selling Shareholder, dated the Closing Date or such Additional Closing Date, as the case may be, to the effect that the representations and warranties of such Selling Shareholder in this Agreement are true and correct on and as of the Closing Date or such Additional Closing Date, as the case may be, with the same effect as if made on the Closing Date or such Additional Closing Date, as the case may be.
(h) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, on the date hereof and at the Closing Date or such Additional Closing Date, as the case may be, letters (which may refer to letters previously delivered to one or more of the Representatives), dated, respectively, as of the date hereof and as of the Closing Date or such Additional Closing Date, as the case may be, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Underwriters with respect to the financial statements and certain financial information of the Company or CAH contained or incorporated by reference in the Registration Statement, the Time of Sale Information or the Prospectus.
(i) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Time of Sale Information or 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 Section 7(h); or (ii) any change, or any development involving a prospective change, in or affecting 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 Registration Statement, the Time of Sale Information 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 RepresentativeRepresentatives, 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 Time of any amendment thereof), the Statutory Prospectus Sale Information and the Prospectus (exclusive of any amendment or supplement thereto).
(hj) Prior to the Closing Date or such Additional Closing Date, as the case may be, the Company and the Selling Shareholders shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ik) FINRA shall not have raised any objection with respect Prior to the fairness Closing Date or reasonableness such Additional Closing Date, as the case may be, the Securities shall have been listed and admitted and authorized for trading on the NYSE, subject (in the case of the underwriting or other arrangements Primary Securities) only to notice of the transactions contemplated herebyissuance.
(jl) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided At or prior to the Representative.
(k) On the Effective Dateexecution of this Agreement, the Company shall have delivered furnished to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered Representatives a letter from each Participant, substantially in the form of Exhibit C A hereto from each Selling Shareholder and from each of the individuals listed on Exhibit B hereto, in each case addressed to the Representatives.
(m) At least one Business Day prior The Company shall have furnished to the Representatives a certificate of the Chief Financial Officer of the Company and the Operating Partnership, on the date hereof and at the Closing Date or such Additional Closing Date, as the Sponsor shall have caused case may be, letters (which may refer to letters previously delivered to one or more of the purchase price Representatives), dated, respectively, as of the date hereof and as of the Closing Date or such Additional Closing Date, as the case may be, in form and substance reasonably satisfactory to counsel for the Private Placement Warrants Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Annex F hereto and to be funded into such further effect as counsel to the Trust AccountUnderwriters may reasonably request.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof The Representatives shall have been issued as of received the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threateneddocumentation referred to in Section 5(a) from each Selling Shareholder. 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 and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 or such Additional Closing Date, as the case may be, by the RepresentativeRepresentatives. 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 Akin Gump Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxx Xxxxx Xxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, unless otherwise indicated herein, on the Closing Date or such Additional Closing Date, as the case may be.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters' obligation to purchase the Underwritten Securities and the Option Securities, as the case may be, Certificates 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 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 6.1. 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 be pending or, to the knowledge of the Company, threatened by the Commission; and the Prospectus Supplement shall have been instituted filed or threatenedtransmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2. Since January 1, 2001, there shall have been no material adverse change (bnot in the ordinary course of business) in the condition of the Company or GMACCM.
6.3. The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, counsel for the Company, to have furnished delivered to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative Underwriters a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Companycertificate, dated the Closing Date, of the President, a Senior Vice President or a Vice President of the Company to the effect that the signers signer of such certificate have carefully has examined this Agreement, the Registration Statement each Preliminary Prospectus, the Prospectus Xxxxxxx and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the SecuritiesServicing Agreement and various other closing documents, and this Agreement and that, to the best of his or her knowledge after reasonable investigation:
(ia) the representations and warranties of the Company in this Agreement and in the Pooling and Servicing Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and in all material respects; and
(b) the Company has has, in all material respects, 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).
(ec) The Company GMACCM shall have furnished delivered to the Representatives Underwriters a certificate signed by the Secretary or Assistant Secretary of the Companycertificate, dated the Closing Date, certifying (i) of the President, a Senior Vice President or a Vice President of GMACCM to the effect that the Amended signer of such certificate has examined the Pooling and Restated Certificate Servicing Agreement and this Agreement and that, to the best of Incorporation his or her knowledge after reasonable investigation, the representations and warranties of GMACCM contained in the Bylaws of the Company Pooling and Servicing Agreement and in this Agreement are true and completecorrect in all material respects.
6.4. The Underwriters shall have received the opinions of Xxxxxx, have not been modified and are in full force and effectXxxxxxxxxx & Xxxxxxxxx, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modifiedLLP, (iii) copies of all correspondence between special counsel for the Company or its and GMACCM, dated the Closing Date as to such matters reasonably requested by the Underwriters, the opinion of Xxxxxx Xxxxxxxx, Esq., counsel for the Company and GMACCM, dated the Closing Date as to such matters reasonably requested by the Underwriters and the Commissionopinion of Xxxxx Xxxxxxx Xxxx Xxxxxx & Xxxxxxx LLP, special California counsel for GMACCM, dated the Closing Date that GMACCM is duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, and (iv) has the requisite power and authority, corporate or other, to own its properties and conduct its business, as to the incumbency of the officers of the Companypresently conducted by it.
6.5. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company Underwriters shall have requested and caused Xxxxxxxxx to have furnished to the Representative, at the Execution Time and at received from their counsel an opinion dated the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, Date in form and substance reasonably satisfactory to the RepresentativeUnderwriters.
6.6. The Underwriters shall have received from Deloitte & Touche, confirming that they are L.L.P., certified public accountants, (a) a registered public accounting firm that is independent with respect letter dated the date hereof and reasonably satisfactory in form and substance to the Company within Underwriters and their counsel, to the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and effect that they have performed a review certain specified procedures, all of the audited financial statements of the Company for the period October 24which have been agreed to by you, 2013 (inception) to November 20, 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;
(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 Supplement under the captions “Dilution” "Description of the Mortgage Pool," "Description of the Certificates" and “Capitalization” in the Statutory Prospectus "Yield and the Prospectus, Maturity Considerations" agrees with the accounting records of the Company, Company and the Mortgage Loan Sellers excluding any questions of legal interpretation; and
interpretation and (iiib) statements as the letter prepared pursuant to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letterSection 5.9 hereof.
(g) Subsequent to the Execution Time or, if earlier, the dates as 6.7. The respective classes 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 Underwritten Certificates shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except rated as set forth in or contemplated in on Schedule I.
6.8. The Underwriters shall have received, with respect to the Statutory Prospectus and the Prospectus (exclusive Trustee, a favorable opinion of any supplement thereto) the effect of whichcounsel, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(h) Prior to dated the Closing Date, addressing the Company valid existence of such party under the laws of the jurisdiction of its organization, the due authorization, execution and delivery of the Pooling and Servicing Agreement by such party and, subject to standard limitations regarding laws affecting creditors' rights and general principles of equity, the enforceability of the Pooling and Servicing Agreement against such party. Such opinion may express its reliance as to factual matters on representations and warranties made by, and on certificates or other documents furnished by officers and/or authorized representatives of, parties to this Agreement and the Pooling and Servicing Agreement and on certificates furnished by public officials. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the party on behalf of which such opinion is being rendered. Such opinion may be qualified as an opinion only on the laws of each state in which the writer of the opinion is admitted to practice law and the federal law of the United States.
6.9. The Underwriters shall have furnished received from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, LLP, special counsel to the Representative such further informationCompany, certificates and from Xxxxxx Xxxxxxxx, Esq., counsel to the Company, reliance letters with respect to any opinions delivered to the rating agencies identified on Schedule I hereto.
6.10. The Underwriters shall have received from counsel to each Mortgage Loan Seller, the opinions substantially to the effect set forth in Section 8(e) of each Mortgage Loan Seller's respective Purchase Agreement (or Section 8(v) of each of the Purchase Agreements relating to the Warehouse Mortgage Loans).
6.11. The Company will furnish the Underwriters with conformed copies of the above opinions, certificates, letters and documents as the Representative may they reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) 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 funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the 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 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 Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Gmac Commercial Mortgage Securities 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 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 Xxxxxxxxx Xxxxxxx Winston & Xxxxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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, 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 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 Xxxxxxxxx Withum to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24from June 2, 2013 2020 (date of inception) through June 4, 2020, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letterletters.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) 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 RepresentativeRepresentatives.
(kj) On the Effective Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Insider Letters, the Registration Rights Agreement and each of the Insider LettersAdministrative Services Agreement.
(l) 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.
(mk) 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 funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Ropes & Xxxx LLP, counsel for the Underwriters, at Xxx 0000 Xxxxxx Xxxxxx xxx Xxxxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing 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 Xxxxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions dated the Closing Date and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Proskauer Rose LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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, 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 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 Xxxxxxxxx Xxxxxx to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24Registration Statement, 2013 (inception) the Statutory Prospectus and the Prospectus, provided that the cutoff date shall not be more than two Business Days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital MarketNYSE, satisfactory evidence of which shall have been provided to the RepresentativeRepresentatives.
(kj) On or prior to the Effective Closing Date, the Company shall have delivered to the Representative Representatives executed copies of the Trust Agreement, the Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Insider Letter, the Registration and Stockholder Rights Agreement and each of the Insider LettersAdministrative Support Agreement.
(k) [Reserved].
(l) 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 $9,000,000 of the purchase price for the Private Placement Warrants to be funded deposited into the Trust AccountAccount and the remaining $3,000,000 to be paid to the Company.
(nm) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(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. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx & Xxxx Proskauer Rose LLP, counsel for the Underwriters, at Xxx Xxxxxx XxxxXxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000XX 00000 Attention: Xxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
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, Certificates pursuant to this Agreement shall be subject in their discretion to the accuracy of and compliance with 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 settlement date pursuant to Section 3 hereofTime, to the accuracy of the statements of the Company Company’s officers made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) At the Closing Time, you shall have received:
(1) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of Xxxx X. Xxxxxxxx, Assistant General Counsel of the Company, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letters for each of the other Underwriters to the effect set forth in Exhibit A hereto.
(2) An opinion and a separate negative assurance letter, each dated the day of the Closing Time, of Xxxxxxxxxx, Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit B hereto.
(3) An opinion, dated the day of the Closing Time, of Debevoise & Xxxxxxxx LLP, special counsel for the Company, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit C hereto.
(4) An opinion, dated the day of the Closing Time, of Xxxxxxx & Xxxxxxx LLP, counsel for U.S. Bank Trust National Association, as the Trustee, Subordination Agent and Loan Trustee under the Indentures and Paying Agent in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit D hereto.
(5) An opinion, dated the day of the Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., tax counsel for the Trustee, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit E-1 hereto.
(6) An opinion, dated the day of the Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the Trustee, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit E-2 hereto.
(7) An opinion, dated the day of the Closing Time, of Xxxxx Xxxxx, Group General Counsel for the Liquidity Provider, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit F hereto.
(8) An opinion, dated the day of the Closing Time, of Winston & Xxxxxx LLP, New York counsel for the Liquidity Provider, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit G hereto and to such further effect as counsel to the Underwriters may reasonably request.
(9) An opinion, dated the day of the Closing Time, from White & Case LLP, counsel for the Underwriters, with respect to the issuance and sale of the Certificates, the Pricing Disclosure Package, the Prospectus and other related matters as you may reasonably require.
(b) The ProspectusProspectus shall have been filed with the 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 3(a) hereof; the final term sheet contemplated by Section 3(b) hereof, and any supplement theretoother material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed in with the manner and Commission within the applicable time period required periods prescribed for such filings by Rule 424(b)433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx LLP, counsel for the Companyinitiated or, to have furnished to the Representative its opinions dated the Closing Date and addressed to the Representative in the form attached as Exhibit A hereto.
(c) The Representative shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representative a certificate knowledge of the Company, signed threatened by the Chief Executive Officer Commission and the principal financial or accounting officer no notice of objection of the Company, dated the Closing Date, Commission 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 use of the Registration Statement or any notice objecting post-effective amendment thereto pursuant to its use has been issued and no proceedings for that purpose Rule 401(g)(2) under the Act shall have been instituted received by the Company; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated 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 knowledge 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 threatened 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 Xxxxxxxxx to have furnished to the 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 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 all requests for additional information by the Commission thereunder and that they shall have performed a review of the audited financial statements of the Company for the period October 24, 2013 (inception) been complied with to November 20, 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 Commissionyour reasonable satisfaction;
(iic) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial On 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 (f) include any supplement thereto at after the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)hereof, there shall not have been (i) any change or decrease decrease, specified in the letter or letters referred to in paragraph (fd) of this Section 6 4 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business or properties of the CompanyCompany and its subsidiaries, whether or not arising from transactions in the ordinary course of businesstaken as a whole, except as set forth in or contemplated in the 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 Representativeyour reasonable judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities Certificates as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Pricing Disclosure Package and the Prospectus (exclusive Prospectus; and you shall have received a certificate of any supplement thereto).
(h) Prior the President, an Executive Vice President, a Senior Vice President or a Vice President of the Company, dated as of the Closing Time, to the Closing Dateeffect that (i) there has been no such material adverse change, in the case of clause (ii) above, in the Company shall have furnished and its subsidiaries, (ii) that the representations and warranties in Section 1 hereof and also the representations and warranties of the Company contained in the Operative Documents are true and correct with the same force and effect as though made at such Closing Time, and as to the Representative such further information, certificates and documents other matters as the Representative you may reasonably request.
(d) At the time of the execution of this Agreement and also at the Closing Time, (i) FINRA Ernst & Young LLP shall not have raised any objection furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you, 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 the Underwriters with respect to the fairness or reasonableness financial statements and certain financial information contained in the Pricing Disclosure Package and the Prospectus, and (ii) you shall have received a certificate of Xxxx Xxxxxxxx, Executive Vice President and Chief Financial Officer of the underwriting or other arrangements of Company, dated the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the NASDAQ Capital Market, satisfactory evidence of which shall have been provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered a letter from each Participantrespective dates thereof, substantially in the form of Exhibit C H hereto.
(me) The Company shall have furnished to you and your counsel, in form and substance satisfactory to them, such other documents, certificates and opinions as such counsel may reasonably request for the purpose of enabling such counsel to pass upon the matters to be covered by the opinions required to be delivered under subsection (a)(9) of this Section 4 and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company theretofore to be performed, or the compliance with any of the conditions herein contained.
(f) Each of the Appraisers shall have furnished to the Underwriters a letter from such Appraiser, addressed to the Company and dated the day of the Closing Time, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates, (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, Underwriter, trustee, partner, director or person performing similar functions.
(g) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company’s unsecured debt securities by either nationally recognized statistical rating organization that is rating the Class AA Certificates, Class A Certificates or Class B Certificates, as set forth in the Issuer Free Writing Prospectus used by the Underwriters to confirm sales, the form of which shall be agreed to between the Company and the Underwriters, and (ii) neither such nationally recognized statistical rating organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s unsecured debt securities.
(h) At least one Business Day or prior to the Closing DateTime, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof each Indenture and each Participation Agreement shall have been issued as of duly executed and delivered by the Closing DateCompany and each other respective party thereto, and no proceedings for that purpose copies thereof shall have been instituted or furnished to you and your counsel. All such opinions, certificates, letters and documents shall have been threatenedbe deemed to be in compliance with the provisions hereof only if they are in all respects reasonably satisfactory to you and your counsel. If any of the conditions condition specified in this Section 6 shall not have been fulfilled when and as provided in this Agreementrequired to be fulfilled, other than by reason of any default by any Underwriter, such failure to fulfill a condition may be waived by you, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not may be reasonably satisfactory in form and substance terminated by you by notice to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or Company at any time at or prior to, to the Closing Date by the Representative. Notice of Time, and such cancellation termination shall be given without liability of any party to the Company any other party, except as provided in writing or by telephone or facsimile confirmed Sections 5, 7 and 10 hereof, which provisions shall remain in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, unless otherwise indicated herein, on the Closing Dateeffect notwithstanding such termination.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereofOption 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 or under Section 8A under the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representative Representatives its opinions and negative assurance letter, each dated the Closing Date and addressed to the Representative Representatives, in a form reasonably acceptable to the form attached as Exhibit A heretoRepresentatives.
(c) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date and addressed to the RepresentativeRepresentatives, 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 Representative 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 Representative 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, 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 or under Section 8A under the Securities Act 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 Xxxxxxxxx KPMG to have furnished to the RepresentativeRepresentatives, 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 RepresentativeRepresentatives, 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 October 24from December 21, 2013 2020 (date of inception) through [•], 2021, provided that the cutoff date shall not be more than two business days prior to November 20such Execution Time or Closing Date, 2013as 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 (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business business, management, properties, assets, rights, operations, condition (financial or properties 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 RepresentativeRepresentatives, 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).
(hg) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further information, certificates and documents as the Representative Representatives may reasonably request.
(ih) 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.
(ji) 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 RepresentativeRepresentatives.
(kj) On the Effective Date, the Company shall have delivered to the Representative 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 Purchase Insider Letters and the Registration Rights Agreement, the Securities Assignment Agreement, the Warrant Subscription Agreement, the Escrow Agreement and each of the Insider Letters.
(l) 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.
(mk) 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 funded deposited into the Trust Account.
(nl) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representative Representatives pursuant to Section 5(kk5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose or under Section 8A under the Securities Act 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 opinions, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 Akin Gump Xxxxxxx Xxxxx Ropes & Xxxx LLP, counsel for the Underwriters, at Xxx 0000 Xxxxxx Xxxxxx xxx Xxxxxxxx, Xxx Xxxx, Xxx XxxxXxxx 00000, 00000Attention: Xxxx X. Xxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement 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 Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx Xxxxxx LLP, counsel for the Company, to have furnished to the Representative its opinions Representatives their opinions, each dated the Closing Date and addressed to the Representative in the form Representatives, as attached as Exhibit A heretoB-1 and Exhibit B-2.
(ci) The Representative Representatives shall have received from Akin Gump Xxxxxxx Xxxxx & Xxxx Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativeRepresentatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative Representatives may reasonably require, and (ii) 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 Representative 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 ProspectusStatement, the Disclosure Package, the Final 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 Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Secretary or Assistant Secretary Chief Financial Officer of the Company, dated the Closing Date, certifying (i) that the Amended in form 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 substance satisfactory 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 certificateUnderwriters.
(f) The Company shall have requested and caused Xxxxxxxxx PricewaterhouseCoopers LLP to have furnished to the RepresentativeRepresentatives, 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 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 October 24, 2013 (inception) to November 20, 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;
(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 (f) include any supplement thereto at the date of the letterRepresentatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial conditionor otherwise), earnings, business or properties of the CompanyCompany 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, which is, in the sole judgment of the RepresentativeRepresentatives, 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).
(h) Prior to the Closing Date, the Company shall have furnished to the Representative Representatives such further customary information, certificates and documents as the Representative Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the NASDAQ Capital MarketNASDAQ, and satisfactory evidence of which such actions shall have been provided to the RepresentativeRepresentatives.
(kj) On At the Effective DateExecution Time, the Company shall have delivered furnished to the 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.
(l) On the Execution Date, the Company shall have caused to be duly executed and delivered Representatives a letter from each Participant, substantially in the form of Exhibit C heretoA hereto from each executive officer and director of the Company and specified holders of the Company’s equity securities addressed to the Representatives.
(mk) At least one Business Day prior If a filing has been made with FINRA, FINRA shall have raised no objection to the Closing Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be funded into the Trust Account.
(n) No order preventing or suspending the sale fairness and reasonableness of the Units in any jurisdiction designated by the Representative pursuant to Section 5(kk) hereof shall have been issued as of the Closing Date, underwriting terms and no proceedings for that purpose shall have been instituted or shall have been threatenedarrangements. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative 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 RepresentativeRepresentatives. 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 delivered, on the Closing Date, at the office of Akin Gump Xxxxxxx Xxxxx & Xxxx Procter LLP, counsel for the Underwriters, at Xxx Xxxxxx Xxxx000 Xxxxxxxx Xxxxxx, Xxx XxxxXxxxxx, Xxx Xxxx, XX 00000, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
