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 made in any 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 Ledgewood PC, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter dated the Closing Date and any settlement 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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives. (d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance letter, dated the Closing Date and any settlement date and addressed to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Chief Financial Officer of the Company, dated the Closing Date and any settlement date, to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any 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). (f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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. (g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter. (h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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 Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives. (k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement. (l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account. (m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. (n) 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 Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement date.
Appears in 2 contracts
Samples: Underwriting Agreement (FTAC Hera Acquisition Corp.), Underwriting Agreement (FTAC Hera 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 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 shall have requested and caused Ledgewood PCProskauer Rose LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxPxxxxxx Coie LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Gxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any 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 Final Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum each of Deloitte & Touche LLP and Kxxx Fxxxx Gxxxxx & Kasierer, a member of Ernst & Young Global, to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming in each case that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission SEC thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References .
(g) The Company shall have furnished to the Prospectus in this paragraph (g) include any supplement thereto Representatives, at the date Execution Time and at the Closing Date, a certificate of its Chief Financial Officer in form and substance reasonably satisfactory to the applicable letterRepresentatives.
(h) The Company shall have requested and caused Hxxxx, Pxxxxx & MxXxxxxx, P.C., regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(i) Subsequent 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 (g(f) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been approved for trading on the Nasdaq Global Market, subject to notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Gxxxxxx Procter LLP, counsel for the Underwriters, at 000 Xxxxxxxxx 600 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 2 contracts
Samples: Underwriting Agreement (Eloxx Pharmaceuticals, Inc.), Underwriting Agreement (Eloxx 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 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 Ledgewood PCXxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to each of the Representatives its opinions their opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to each of the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxXxxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx, Cayman Islands special counsel for the CompanyCompany with respect to certain intellectual property matters, to have furnished to each of the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to each of the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Company shall have requested and caused Xxxxxxx Xxxxx LLP, special counsel for the Company with respect to certain regulatory matters, to have furnished to each of the Representatives their opinion, dated the Closing Date and addressed to each of the Representatives, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or and the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum each of Ernst & Young LLP and Xxxx Xxxxxx Xxxxx, Inc. to have furnished to each of the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(g) of this Section Section 6 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 CompanyCompany and the Subsidiary taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company shall have furnished to each of the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of the Addendum hereto from each officer and director of the Company and each holder of the Company’s equity securities addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLPof, counsel for the Underwriters, at Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 2 contracts
Samples: Underwriting Agreement (Singulex Inc), Underwriting Agreement (Singulex 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 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 Ledgewood PCWinston & Sxxxxx LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in a form and substance acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx Mxxxxx and XxxxxxCalder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in a form and substance acceptable satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Skadden, Arps, Slate, Mxxxxxx & Xxxxxxxx Fxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date and any settlement dateDate, certifying (i) that the Charter is Amended and Restated Memorandum and Articles of Association of the Company are true and complete, has have not been modified and is are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunderthereunder and that they have performed a review of the audited financial statements of the Company for the period July 12, 2017 (inception) through December 31, 2017, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, and reporting on financial or statistical nature (which is limited to accounting, financial or statistical information derived from the other procedures performed by them in respect general accounting records of the financial information Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (g(e) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(e) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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).
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) 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.
(jk) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kl) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Warrant Purchase Agreement, each of the Insider Letters, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(lm) At least one (1) Business Day prior to the Closing Date, the Sponsor Initial Shareholders shall have caused an agreed amount of proceeds from the sale of purchase price for the Private Placement Units Warrants to be deposited 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.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Skadden, Arps, Slate, Mxxxxxx & Xxxxxxxx Fxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx 300 Xxxxx Xxxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx Gxxxx X. Xxxxxxxxx, Xxxx and Jxxxxxxx Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 2 contracts
Samples: Underwriting Agreement (Platinum Eagle Acquisition Corp.), Underwriting Agreement (Platinum 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 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 Ledgewood PCWeil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in a form and substance reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxCalder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in a form and substance reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunderthereunder and that they have performed a review of the audited financial statements of the Company for the period from February 11, 2020 (date of inception) through March 12, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, and reporting on financial or statistical nature (which is limited to accounting, financial or statistical information derived from the other procedures performed by them in respect general accounting records of the financial information Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (g(f) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(f) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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 Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital MarketNew York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Warrant Subscription Agreement, the Insider LetterForward Purchase Agreement, the Millennium Purchase Insider Letters, the Registration Rights Agreement and the Administrative Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor Trasimene Trebia, LP and BGPT Trebia LP shall have caused an agreed amount of proceeds from the sale of purchase price for the Private Placement Units Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx.Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 2 contracts
Samples: Underwriting Agreement (Trebia Acquisition Corp.), Underwriting Agreement (Trebia 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, pursuant to a Terms Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of at the Execution Time, Time and the Closing Date and any 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 stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use Company shall have been issued requested and no proceedings caused Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for that purpose shall have been instituted or threatenedthe Company, to furnish to the Representatives its opinion and letter, dated the Closing Date and addressed to the Representatives, substantially to the effect set forth in Exhibit A—1.
(b) The Company shall have requested and caused Ledgewood PCXxxxxxxx X. Camera, counsel for Esq., the General Counsel of the Company, to have furnished furnish to the Representatives its opinions his opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, substantially to the Representativeseffect set forth in Exhibit A—2.
(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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to certain of the matters referred to in paragraphs 1, 3, 4, 5 and 6 of Exhibit A-1, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them it to pass upon such matters. In addition, such counsel shall state that (A) the Registration Statement, as of the date of the Terms Agreement, and the Prospectus, as of its date, appear on their faces to have been appropriately responsive in all material respects to the applicable requirements of the Act and the applicable rules and regulations of the Commission thereunder; and (B) such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriters at which the contents of the Registration Statement and the Prospectus (excluding the documents incorporated by reference) were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, on the basis of the foregoing, no fact has come to the attention of such counsel that gave such counsel reason to believe that (i) the Registration Statement, as of the date of the Terms Agreement, 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 (ii) the Prospectus, as of its 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer chief financial officer of the Company and the treasurer or Chief Financial Officer the controller of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement theretoto the Prospectus, as well as each road show used in connection with the Offering, Terms Agreement and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement and the Terms Agreement are true and correct in all material respects on and as of such date the Closing Date, with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatenedClosing Date; and
(iiiii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement theretothereto filed subsequent to the date of the Terms Agreement), 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 and by the Prospectus (exclusive of any amendment or supplement theretothereto filed subsequent to the date of the Terms Agreement).
(fe) The Company Underwriters shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying received on (i) that the Charter is true date of the Terms Agreement, and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersa letter, dated respectively as of the Execution Time and as of the Closing Date, and any settlement such date, in form and substance satisfactory to the RepresentativesUnderwriters, confirming that they are a registered from PricewaterhouseCoopers LLC, independent public accounting firm that is independent accountants, 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, that in their opinion the audited financial statements and certain financial statement schedules included information contained in or incorporated by reference into the Registration Statement, the Statutory Prospectus and the Prospectus 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 CommissionProspectus, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References each such letter shall use a “cut-off date” not earlier than three days prior to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable such letter.
(hf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Prospectus (exclusive of any amendment thereof), or supplement thereto filed subsequent to the Statutory Prospectus and date of the Prospectus (exclusive of any supplement theretoTerms Agreement), there shall not have been (i) any change or decrease specified in the letters capital stock, any increase in long-term debt (excluding the Underwritten Securities) or any decrease in consolidated net current assets (working capital) or stockholders’ equity, or any decreases in total consolidated net sales, income from operations or net income, of the Company with respect to the period subsequent to the end of the Company’s most recently completed fiscal quarter, other than as set forth in the letter referred to in paragraph (gSection 5(e) of this Section 6 hereof; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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 and the Prospectus (exclusive of any amendment or supplement theretothereto filed subsequent to the date of the Terms Agreement) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with market the offering or delivery of the Underwritten Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any amendment or supplement theretothereto filed subsequent to the date of the Terms Agreement).
(ig) 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 listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York City time, on the second full Business Day after the date of the Terms Agreement and any Rule 462(b) Registration Statement required in connection with the offering and sale of the Underwritten Securities shall have been filed and become effective no later than 10:00 p.m., New York City time, on the date of the Terms Agreement. If any of the conditions specified in this Section 6 Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and 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 any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall Section 5 will be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at Shearman & Sterling LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, prior to 9 A.M. on the Closing Date and any applicable settlement dateDate.
Appears in 2 contracts
Samples: Terms Agreement (Interpublic Group of Companies, Inc.), Terms Agreement (Interpublic Group of Companies, 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 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 Ledgewood PCXxxxx Xxxxx & Co., Israeli counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory in all respects to the Representatives.
(c) The Company shall have requested and caused Xxxxxx Mintz, Levin, Cohn, Ferris, Glovsky and XxxxxxPopeo, Cayman Islands P.C., U.S. counsel for the Company, Company to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory in all respects to the Representatives.
(d) The Representatives Company shall have received from Xxxxx Xxxx requested and caused Howrey, Xxxxx, Xxxxxx & Xxxxxxxx White LLP, IP counsel for the Underwriters, its opinions and negative assurance letterCompany to have furnished to the Representatives their opinion, dated the Closing Date and any settlement date addressed to the Representatives, in form and substance satisfactory in all respects to the Representatives.
(e) The Representatives shall have received from Xxxxxxx Procter LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Representatives shall have received from Goldfarb, Levy, Eran, Meiri & Co., Israeli counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Prospectus, the Prospectus Disclosure Package and any amendment or supplement thereto, as well as each road show electronic roadshow used in connection with the Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(gh) The Company shall have requested and caused Withum Xxxx Xxxxx Xxxxxx & Kasierer, a member of Ernst & Young Global to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory in all respects to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hi) Subsequent 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 (g(h) of this Section Section 6 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 CompanyCompany and its Subsidiary, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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 supplement thereto).
(ij) FINRA shall not have raised any objection with respect Prior to the fairness or reasonableness Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each executive officer and director of the underwriting or other arrangements of Company and from each shareholder and option holder addressed to the transactions contemplated herebyRepresentatives.
(jk) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital MarketNational Markets, and satisfactory evidence of which such action shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxExchange Place, Xxx XxxxBoston, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, Massachusetts on the Closing Date and any applicable settlement dateDate.
Appears in 2 contracts
Samples: Underwriting Agreement (Rosetta Genomics Ltd.), Underwriting Agreement (Rosetta Genomics 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 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 Ledgewood PCXxxxxxxx & Xxxxx LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter dated the Closing Date and any settlement date and addressed to the Representatives Representative in form and substance acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxCalder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and any settlement date and addressed to the Representatives Representative in form and substance acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, 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.
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each the signer of such certificate has carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) 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 and any settlement dateDate, certifying (i) that the Charter is Amended and Restated Memorandum and Articles of Association of the Company are true and complete, has have not been modified and is are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the RepresentativesRepresentative, 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 thereunderthereunder and that they have performed an audit of the financial statements of the Company for the period November 29, 2017 (inception) through December 31, 2017, 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, and reporting on financial or statistical nature (which is limited to accounting, financial or statistical information derived from the other procedures performed by them in respect general accounting records of the financial information 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 Representative may reasonably request. References to the Prospectus in this paragraph (g(g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(g) of this Section Section 6 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, 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 RepresentativesRepresentative, 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).
(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 RepresentativesRepresentative.
(k) On the Effective Date, the The Company shall have delivered to the Representatives Representative (i) executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, Services Agreement and the Insider Letter, Letters on the Millennium Closing Date and (ii) executed copies of the Founder’s Purchase Agreement and the Services AgreementPrivate Placement Warrants Purchase Agreement on the Effective Date.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of purchase price for the Private Placement Units Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(hhSection 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxx Xxxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 2 contracts
Samples: Underwriting Agreement (Leo Holdings Corp.), Underwriting Agreement (Leo Holdings 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 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 Ledgewood PCXxxxx Lovells US LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in the form agreed by such counsel and substance acceptable to the RepresentativesUnderwriters.
(ci) The Company shall have requested and caused Xxxxxx and XxxxxxHall & Xxxxxxx LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date addressed to the Representatives, substantially in the form agreed by such counsel and the Underwriters.
(ii) The Company shall have requested and caused Fish & Xxxxxxxxxx P.C., intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives Representatives, substantially in the form agreed by such counsel and substance acceptable to the RepresentativesUnderwriters.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer principal executive officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has carefully examined have reviewed 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included substantially in the Registration Statement, the Statutory Prospectus and the Prospectus comply form as to form set forth in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.Exhibit C.
(hg) Subsequent 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 (g(f) of this Section Section 6 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 CompanyCompany and the Subsidiary taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further customary information, certificates and documents as the Representatives may reasonably request. .
(i) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each holder of capital stock of the Company prior to the date hereof (other than employees of the Company holding, in aggregate, less than 1% of the outstanding capital stock of the Company) addressed to the Representatives If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xxxxx Xx., unless otherwise indicated hereinMenlo Park, CA 94025, on the Closing Date and any applicable settlement dateDate.
Appears in 2 contracts
Samples: Underwriting Agreement (TESARO, Inc.), Underwriting Agreement (TESARO, 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 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 Ledgewood PCXxxxxxxx & Xxxxx LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter dated the Closing Date and any settlement date and addressed to the Representatives Representative, in a form and substance reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxGroup, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and any settlement date and addressed to the Representatives Representative, in a form and substance reasonably acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, 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
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the RepresentativesRepresentative, 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 thereunderthereunder and that they have performed a review of the audited financial statements of the Company for the period from August 31, 2020 (date of inception) through September 2, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, and reporting on financial or statistical nature (which is limited to accounting, financial or statistical Credit Suisse Securities (USA) LLC [●], 2021 information derived from the other procedures performed by them in respect general accounting records of the financial information Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (g(e) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(e) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties 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 RepresentativesRepresentative, 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 The Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(k) On the Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Warrant Subscription Agreement, the Insider LetterLetters, the Millennium Purchase Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of purchase price for the Private Placement Units Warrants to be deposited into the Trust Account.. Credit Suisse Securities (USA) LLC [●], 2021
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx.Xxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 2 contracts
Samples: Underwriting Agreement (TZP Strategies Acquisition Corp.), Underwriting Agreement (TZP Strategies 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 and the Guarantor 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 Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of its their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and any material required to be filed by the Company or the Guarantor 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 and the Guarantor shall have requested and caused Ledgewood PC, counsel for the Company, Company and the Guarantor to have furnished to the Representatives its opinions and negative assurance letter the opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, with respect to the Representativesissuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require.
(c) The Company shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company and the Guarantor shall have furnished to the Representatives a certificate of the CompanyCompany and the Guarantor, signed by (1) with respect to the Company - the Chairman, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary of the Company and (2) with respect to the Guarantor - the Chairman, any Vice Chairman, the President, any Vice President, the Chief Executive Officer Financial Officer, the Chief Accounting Officer, the General Counsel, the Controller or Chief Financial Officer any Deputy Controller and by the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the CompanyGuarantor, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Final Prospectus, the Prospectus Disclosure Package and any amendment supplements or supplement amendments thereto, as well as each road show electronic roadshow used in connection with to offer the OfferingSecurities, and this Agreement and that:
(i) the representations and warranties of the Company and the Guarantor in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has and the Guarantor have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledgeknowledge of the Company and the Guarantor, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor 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).
(fe) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company Guarantor shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersa customary "comfort letter" (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date, that is satisfactory in content and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hf) Subsequent 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 (g(e) of this Section Section 6 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 CompanyGuarantor 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentatives after consultation with the Company and the Guarantor, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)) and any Issuer Free Writing Prospectus.
(ig) 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 or other arrangements the Guarantor's senior or subordinated 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 transactions contemplated herebypossible change.
(jh) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from Company and the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company Guarantor shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this AgreementAgreement with respect to an offering of Securities, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled with respect to such offering at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company and the Guarantor in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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) 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 Ledgewood PCXxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated as of the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxx+Elbing LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated as of the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer chief executive officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated as of the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that SEC thereunder and containing statements and information of the type customarily included in their opinion accountants’ “comfort letters” to underwriters with respect to the audited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) 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 ) 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 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.
(j) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq [Global] Select Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director and substantially all of the security holders of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Decibel Therapeutics, 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 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, Prospectus and any supplement thereto, thereto shall 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 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 Ledgewood PCXxxxxxx Procter LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx Procter LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Ropes & Xxxxxxxx Gray LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer or and the Interim Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering of the Securities, and this Agreement and that:
(i) To the knowledge of such officers after reasonable investigation, the representations and warranties of the Company set forth in Section 1(b) and 1(c) 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;
(ii) all other representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(iiiii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiiiv) 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 Effect that is not set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a written certificate signed by of the Secretary Interim Chief Financial Officer of the Company, dated the Closing Date Date, in form and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating substance reasonably satisfactory 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 certificateRepresentatives.
(g) The Company shall have requested and caused Withum PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(f) of this Section Section 6 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, 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter addressed to the Representatives substantially in the form of Exhibit A hereto from each officer, director and holder of any securities of the Company listed on Schedule 6(k) attached hereto. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Ropes & Xxxxxxxx Gray LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxxxx Xxxxxx, Xxx XxxxXxxxxx, Xxx Xxxx XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Proteostasis Therapeutics, 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 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 Ledgewood PCXxxxxx LLP , counsel for the Company, to have furnished to the Representatives its opinions Representative their opinion and negative assurance letter letter, each dated the Closing Date and any settlement date and addressed to the Representatives Representative in form and substance acceptable reasonably satisfactory to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxx Xxxx LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions Representative their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representative in form and substance acceptable reasonably satisfactory to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the 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.
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer principal executive officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company Representative shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representativesreceived from Ernst & Young LLP, at the Execution Time and at the Closing Date, and any settlement date, comfort letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterRepresentative.
(hg) Subsequent 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 (g(g) of this Section Section 6 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 CompanyCompany 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(i) To the extent that there are outstanding any debt securities of the Company rated by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act), then subsequent to the Execution Time, there shall not have been any decrease in the rating of such debt securities by any “nationally recognized statistical rating organization” or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representative.
(k) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the holders of equity securities of the Company set forth on Schedule III hereto addressed to the Representative. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, at 000 Xxx Xxxxxxxxx Xxxxxx, Xxx XxxxXxxxxx, Xxx Xxxx Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Calithera Biosciences, 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 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 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 Ledgewood PC, counsel for the Company, Company to have furnished to the Representatives its opinions and negative assurance letter the opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, with respect to the Representativesissuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxxx Xxxxx & Xxxxxxxx LLP, Cayman Islands special tax counsel for to the Company, to have furnished to the Representatives its opinions an opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, with respect to certain United States federal income tax matters related to the RepresentativesSecurities and other related matters as the Representatives may reasonably require.
(d) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by two officers serving as the Chairman, any Vice Chairman, the President, any Vice President, the Chief Executive Officer Financial Officer, the Chief Accounting Officer, the Chief Investment Officer, the General Counsel, the Controller, any Deputy Controller, the Treasurer, the Deputy Treasurer, any Assistant Treasurer, the Secretary or Chief Financial Officer any Assistant Secretary of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Final Prospectus, the Prospectus Disclosure Package and any amendment supplements or supplement amendments thereto, as well as each road show electronic roadshow used in connection with to offer the OfferingSecurities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersa customary “comfort letter” (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date, that is satisfactory in content and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentatives after consultation with the Company, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)) and any Issuer Free Writing Prospectus.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this AgreementAgreement with respect to an offering of Securities, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled with respect to such offering at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of via electronic mail or other electronic document delivery system to Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Citigroup Global Markets 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 hereofSettlement 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); 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 Ledgewood PCRopes & Gray LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx Procter LLP, Cayman Islands as counsel for the CompanyCompany with respect to intellectual property matters, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer principal executive officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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, prospectus or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and any settlement datesubstance satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives, at the Execution Time and at the Closing Date, certificates of the Company dated respectively as of the Execution Time and as of the Closing Date, with respect to certain financial data, signed by the principal financial or accounting officer of the Company, in form and substance satisfactory to the Representatives, 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, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(e) of this Section 6 Section 5 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of 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.
(k) The Company shall use its best efforts to cause the Shares to be listed on the Nasdaq Capital Market and to maintain such listing on the Nasdaq Capital Market.
(l) The FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(m) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the Company listed on Schedule V hereto addressed to the Representatives. The Company will use its best efforts to enforce the terms of each Lock-Up Agreement and will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(n) The Company shall not have received an objection from the Nasdaq Capital Market with respect to the listing of additional shares notification that it filed with the Nasdaq Capital Market in connection with the Shares and the Warrant Shares. If any of the conditions specified in this Section 6 Section 5 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 Section 5 shall be delivered at the office of Xxxxx Xxxx Xxxxxxxxx & Xxxxxxxx Xxxxxxx, LLP, counsel for the Underwriters, at The New York Times Building, 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinXX 00000 (or such other place as mutually may be agreed upon), on or before the Closing Date and any applicable settlement dateDate.
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 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 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 Ledgewood PC, counsel for the Company, Company to have furnished to the Representatives its opinions and negative assurance letter the opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, with respect to the Representativesissuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require.
(c) The Company shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands its special tax counsel for to the Company, to have furnished to the Representatives its opinions an opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, with respect to certain United States federal income tax matters related to the RepresentativesSecurities and other related matters as the Representatives may reasonably require.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Officer, or the Chief Financial Officer of the CompanyOfficer, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Final Prospectus, the Prospectus Disclosure Package and any amendment supplements or supplement amendments thereto, as well as each road show electronic roadshow used in connection with to offer the OfferingSecurities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum it’s accountants to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersa customary “comfort letter” (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date, that is satisfactory in content and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentatives after consultation with the Company, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)) and any Issuer Free Writing Prospectus.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this AgreementAgreement with respect to an offering of Securities, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled with respect to such offering at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, the counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, underwriters on the Closing Date and any applicable settlement dateDate.
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 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) 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 Ledgewood PCXxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxLoyens & Loeff N.V., Cayman Islands Dutch counsel for the Company, to have furnished to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling (London) LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, 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 reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received from Van Doorne N.V., counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the 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 reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the chief executive officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 (except to the extent that such representation and warranty is itself qualified by materiality) on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions (except to the extent that such representation and warranty is itself qualified by materiality) on its part to be performed or satisfied hereunder at or prior to such datethe 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 incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), 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, 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).
(fg) The Company shall have furnished to At the Representatives a certificate signed by the Secretary of the Company, dated Execution Time and on the Closing Date and any settlement dateDate, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum KPMG Accountants N.V., to have furnished furnish to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, Representatives letters, dated respectively as on the date of the Execution Time and as of the Closing Date, and any settlement daterespectively, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type 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, that in their opinion the audited financial statements and certain other financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Final Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 letters referred to in paragraph (g(g) of this Section 6 Section 6; or (ii) any change, or any development involving a prospective change, change in or affecting the condition (financial or otherwise)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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each of the individuals listed on the Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Shearman & Xxxxxxxx Sterling (London) LLP, counsel for the Underwriters, at 000 Xxxxxxxxx 0 Xxxxxx Xxxxxx, Xxx XxxxLondon EC2A 2AP, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinUnited Kingdom, on the Closing Date and any applicable settlement dateDate.
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 Issuers 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 Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Issuers pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused Ledgewood PCXxxxx Day, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesattached as Exhibit A hereto.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx X’Xxxxx, Cayman Islands general counsel for the Company, to have furnished to the Representatives its opinions his opinion, dated the Closing Date and any settlement date addressed to the Representatives, in substantially the form attached as Exhibit B hereto.
(d) The Company shall have requested and caused Gilbride, Tusa, Last & Xxxxxxxx, LLC, special local counsel for Omnicom Capital Inc., to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesattached as Exhibit C hereto.
(de) The Representatives shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the CompanyIssuers, signed by an Executive Vice President and the Chief Executive Officer principal financial or Chief Financial Officer accounting officer of each of the CompanyIssuers, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Final Prospectus, the Prospectus Disclosure Package and any amendment supplements or supplement amendments thereto, as well as each road show electronic roadshow used in connection with to offer the Offering, securities identified on Schedule V and this Agreement and that:
(i) the representations and warranties of the Company Issuers in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 any of the Company’s Issuers’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement dateletters, letters(which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, that thereunder and containing statements and information of the type customarily included in their opinion accountants’ “comfort letters” to underwriters with respect to 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 comply as to form in all material respects with Final Prospectus; provided that the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting letter delivered on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References Closing Date shall use a “cut-off” date no more than three business days prior to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterClosing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(g) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and subject to Section 11 hereof all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 shall have requested and caused Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxxxx Xxxxxx and XxxxxxXxxxxxxx Xxxxxxx LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, 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 reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Executive Chairman or the Chief Executive Officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 amendment or 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 amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives.
(g) The Securities shall have been listed and admitted and authorized for trading on Nasdaq, confirming that they are a registered public accounting firm that is independent with respect and satisfactory evidence of such actions shall have been provided to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterRepresentatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness At or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateExecution Time, the Company shall have furnished to the Representatives such further information, certificates a letter in the form of Exhibit A hereto from each officer and documents as director of the Representatives may reasonably requestCompany and all holders of the Company’s equity securities addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone telephone, facsimile or facsimile electronic mail confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxXxxxx Xxxxx, Xxx XxxxMenlo Park, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinCalifornia 94025, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Mirum 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 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); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Ledgewood PCGxxxxxxx Mxxxxx, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx Pxxxxxxx Prietocarrizosa Ferrero DU & Uría, Colombian counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and Xxxxxxaddressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(d) The Company shall have requested and caused Mxxxxx and Cxxxxx, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(de) The Representatives shall have received from Xxxxx Xxxx Lxxxxx & Xxxxxxxx Wxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum PricewaterhouseCoopers Ltda., to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of 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.
(k) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Capital Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) The FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(m) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the Company and each affiliated stockholder of the Company listed on Schedule V hereto addressed to the Representatives. The Company will use its best efforts to enforce the terms of each Lock-Up Agreement and will issue stop-transfer instructions to the transfer agent for the Ordinary Shares with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(n) On or prior to the Closing Date, the Underwriters shall have received evidence of the agreement of Gxxxxxxx Mxxxxx to act as the process agent of the Company, as described in Section 16 hereof. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Lxxxxx & Xxxxxxxx Wxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx 800 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein-0000, on the Closing Date and any applicable settlement dateDate.
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 Issuers 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 Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Issuers pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused Ledgewood PCXxxxx Day, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesattached as Exhibit A hereto.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx X’Xxxxx, Cayman Islands general counsel for the Company, to have furnished to the Representatives its opinions his opinion, dated the Closing Date and any settlement date addressed to the Representatives, in substantially the form attached as Exhibit B hereto.
(d) The Company shall have requested and caused Gilbride, Tusa, Last & Xxxxxxxx LLC, special local counsel for Omnicom Capital Inc., to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesattached as Exhibit C hereto.
(de) The Representatives shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the CompanyIssuers, signed by an Executive Vice President and the Chief Executive Officer principal financial or Chief Financial Officer accounting officer of each of the CompanyIssuers, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Final Prospectus, the Prospectus Disclosure Package and any amendment supplements or supplement amendments thereto, as well as each road show electronic roadshow used in connection with to offer the Offering, securities identified on Schedule V and this Agreement and that:
(i) the representations and warranties of the Company Issuers in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 any of the Company’s Issuers’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, that thereunder and containing statements and information of the type customarily included in their opinion accountants’ “comfort letters” to underwriters with respect to 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 comply as to form in all material respects with Final Prospectus; provided that the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting letter delivered on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References Closing Date shall use a “cut-off” date no more than three business days prior to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterClosing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(g) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 Section 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 listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and and, subject to Section 11 hereof, all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 Ledgewood PCXxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to Date, in the Representatives in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxLLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date addressed to the Representatives, in the form and substance reasonably satisfactory to the Representatives. The Company shall have requested and caused Wolf, Greenfield & Sacks, P.C., intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives Representatives, in the form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Company shall have requested and caused Kleinfeld, Xxxxxx And Xxxxxx, LLP, regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer or and the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(e) of this Section Section 6 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 CompanyCompany and the Subsidiary taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of 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 Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx One Freedom Square, Reston Town Center, 00000 Xxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 Ledgewood PCFenwick & West LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form agreed by such counsel and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx Seed IP Law Group PLLC and XxxxxxXxxxxxxxx Ring, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinions, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form the forms agreed by such counsel and substance acceptable to the Representatives.
(d) The Company shall have requested and caused Hyman, Phelps, & XxXxxxxx, PC, regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form agreed by such counsel and the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or and the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any amendment or supplement thereto)) and prior to the issuance of the Underwritten Securities, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) Subsequent to the Execution Time and prior to the issuance of the Underwritten Securities, 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.
(k) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the holders of equity securities of the Company listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxx0xx Xxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinXxxxxxxxxx 00000, on the Closing Date and any applicable settlement dateDate.
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 Selling Unitholder and the Company, the Operating Partnership and the General Partner contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section Section 3 hereof, to the accuracy of the statements of the Selling Unitholder and the Company, the Operating Partnership and the General Partner made in any certificates pursuant to the provisions hereof, to the performance by the Company Selling Unitholder and the Company, the Operating Partnership and the General Partner of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, will have been filed in the manner and within the time period required by Rule 424(b); 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, to the knowledge of the Company, 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 threatened.
(b) The Company shall have requested and caused Ledgewood PC, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(ci) The Company shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands Xxxxx & Bockius LLP, counsel for to the Company, the Operating Partnership and the General Partner, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date addressed to the Representatives, in form and substance as agreed with the Representatives; (ii) the Company shall have requested and caused its General Counsel to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives Representatives, in form and substance acceptable as agreed with the Representatives; and (iii) the Selling Unitholder shall have requested and caused Xxxxxx & Xxxxxxx LLP, counsel for the Selling Unitholder, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance as agreed with the Representatives.
(dc) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the sale of the Securities, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Unitholder shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Companycertificate, signed by the Chief Executive Officer President or Chief Financial Officer any Vice President and the principal financial or accounting officer of the CompanyGeneral Partner, dated the Closing Date and any settlement dateDate, to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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 Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement 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 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 Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused each of Xxxxxxxxxxx Xxxxx & Xxxxxxxxxxx, IP counsel for the Company, and Xxxxxx and XxxxxxXxxxxxx Xxxxx & Scarborough LLP, Cayman Islands IP counsel for the Company, to have furnished to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Company shall have requested and caused Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda counsel for the Company to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer principal executive officer and the principal financial or Chief Financial Officer accounting officer of the Company, in each case on behalf of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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)Prospectus, there has been no Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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 certificateProspectus.
(g) The Company shall have requested and caused Withum each of KPMG Audit Limited and Xxxx Xxxxx LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Time, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(f) of this Section Section 6 or (ii) any material change, or any development involving a prospective change, in or affecting the condition (financial or 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(i) or (ii(ii) above, is, in the sole reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus.
(i) FINRA shall not have raised any objection with respect to On 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 date hereof and on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Closing Date, the Company shall have delivered furnished to the Representatives executed copies of a certificate, signed by the Trust AgreementCompany’s Chief Financial Officer, with respect to certain financial information contained in the Registration Statement, the Warrant AgreementPreliminary Prospectus, the Founder’s Purchase AgreementDisclosure Package, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services AgreementProspectus, in form and substance reasonably satisfactory to the Underwriter.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nj) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) The Shares and the Warrant Shares shall have been listed and admitted and authorized for trading on the Nasdaq Capital Market, subject to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) The FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same. Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each executive officer and director of the Company and each stockholder of the Company listed on Schedule II hereto addressed to the Representatives. 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. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (SELLAS Life Sciences Group, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Settlement Date pursuant to Section 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 Ledgewood PCXxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxx Xxxx LLP, Cayman Islands regulatory counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Company shall have requested and caused Xxxxxxxxx & Xxxxxxxxx, P.C., intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or letters, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the principal executive officer and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each road show electronic roadshow used in connection with the Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum (i) Xxxxxx LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date(ii) Xxxxxxxx LLP to have furnished to the Representatives, at the Execution Time, a letter, dated as of the Execution Time, in each case in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(e) of this Section Section 6 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 CompanyCompany and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) The Shares shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(l) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit B 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.
(m) The Company shall not have received an objection from the Nasdaq Global Market with respect to the listing of additional shares notification that it filed with the Nasdaq Global Market in connection with the Shares and the Warrant Shares. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter, LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinor at such other place as shall be agreed upon by the Representatives and the Company, on the Closing Date and any applicable settlement dateDate.
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 bedescribed in Section 2 above, 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 Execution 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 Final Prospectus, and any amendment or supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheets contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened and any request of the Commission for additional information (to be included in the Registration Statement or the Final Prospectus or otherwise with respect to the offering of the Securities) shall have been complied with in all material respects.
(b) The Company shall have requested and caused Ledgewood PC, counsel for the Company, General Counsel of the Company to have furnished to the Representatives its opinions and negative assurance letter his opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in substantially the form and substance acceptable reasonably agreed to by the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx Xxxx & Xxxxxxxxx LLP, Cayman Islands counsel for to the Company, to have furnished to the Representatives its opinions their opinion and letter, each dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in substantially the form and substance acceptable reasonably agreed to by the Representatives.
(d) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions their letter and negative assurance letteropinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to such matters as the Representatives may reasonably request, 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer and President or Chief Financial Officer any Executive Vice President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 show, if any, used in connection with the Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Preliminary Prospectus and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) At the Execution Time, the Representatives shall have received from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, two letters, each dated the Execution Time addressed to the Underwriters, in form and substance satisfactory to the Representatives, with respect to the audited and unaudited financial statements and certain other financial information of the Company and Xxxx Xxxxx, Inc., respectively, contained or incorporated by reference in the Registration Statement and the Preliminary Prospectus.
(g) On the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, two letters dated such date addressed to the Underwriters, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the applicable letter furnished by them pursuant to subsection (f) of this Section 6, except that the letters will refer to the Final Prospectus and the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
(h) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Secretary Chief Accounting Officer of the Company, dated the Closing Date and any settlement dateDate, certifying (i) that in substantially the Charter is true and complete, has not been modified and is in full force and effect, (ii) that form reasonably agreed to by 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 certificateRepresentatives.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hi) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus (in each case, exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(f) or (g) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement Statement, the Preliminary Prospectus and the Final Prospectus (in each case, exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any or supplement thereto).
(ij) 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 Section 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 either indicates a negative change or does not indicate the direction 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 Representativespossible change.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company promptly in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLPLLP , counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 Ledgewood PCFenwick & West LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter Representative their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representative, in the form agreed by such counsel and substance acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx Seed IP Law Group PLLC and XxxxxxXxxxxxxxx Ring, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions Representative their opinions, dated the Closing Date and any settlement date and addressed to the Representatives Representative, in form the forms agreed by such counsel and substance acceptable to the RepresentativesRepresentative.
(d) The Representatives Company shall have requested and caused King & Spalding LLP, regulatory counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, in the form agreed by such counsel and the Representative.
(e) The Representative shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the 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.
(ef) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer or and the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterRepresentative.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any amendment or supplement thereto)) and prior to the issuance of the Underwritten Securities, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(j) Subsequent to the Execution Time and prior to the issuance of the Underwritten Securities, 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.
(k) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representative.
(l) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the stockholders listed on Schedule VI hereto addressed to the Representative. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxx0xx Xxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinXxxxxxxxxx 00000, on the Closing Date and any applicable settlement dateDate.
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 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 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 Ledgewood PCXxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, each dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form previously agreed to by, and substance acceptable to reasonably satisfactory to, the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxSterne, Cayman Islands Kessler, Xxxxxxxxx & Fox, P.L.L.C., intellectual property counsel for the Company, to have furnished to the Representatives its such opinion or opinions dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form previously agreed to by, and substance acceptable to reasonably satisfactory to, the Representatives.
(d) The Company shall have requested and caused NautaDutilh N.V., Dutch counsel for the Company, to have furnished to the Representatives such opinion or opinions dated the Closing Date and addressed to the Representatives, in the form previously agreed to by, and reasonably satisfactory to, the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ef) The Representatives shall have received from Van Doorne N.V., Dutch counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President, Chief Executive Officer or Chief and Principal Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each the signer of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse EffectEffect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(gh) The Company shall have requested and caused Withum KPMG Accountants N.V. to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hi) Subsequent 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 letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) The Securities shall be listed and authorized for trading on The Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a signed lock-up agreement substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each director and member of senior management of the Company and each other person listed on Schedule IV hereto.
(m) At the Execution Time and the Closing Date, the Company shall deliver to the Representatives a certificate of the Company, signed by the principal accounting officer of the Company, dated respectively as of the Execution Time and as of the Closing Date, certifying as to the accuracy of certain financial information included in the Registration Statement and the Prospectus, all in form and substance reasonably satisfactory to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx00 Xxxxxx Xxxxx, Xxx XxxxNew York, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinNew York 10001, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Merus N.V.)
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 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) 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 Ledgewood PCXxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxx Xxxxx Zedek Xxxxxx and Xxxxxx, Cayman Islands LLP, intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(d) The Company shall have requested and caused Xxxxxx & Xxxxxxx LLP, tax counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)Statement, 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 (g(f) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and all stockholders and optionholders of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx Xxxx, 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Ayala 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 TimeApplicable Time of Sale, the Execution 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 Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d), 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 by the Commission 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 Ledgewood PCXxXxxxxx Xxxxxxx & Xxxx LLP, special counsel for the Company, to shall have furnished to the Representatives its opinions opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives in a form and substance acceptable to the Representativesmutually agreed upon.
(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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives[Reserved].
(d) The Representatives shall have received from Xxxxx Xxxx Winston & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the 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. In rendering such opinion, Winston & Xxxxxx LLP may rely, as to matters governed by the laws of the State of Maryland, upon the opinion of special counsel for the Company referred to in Section 6(b).
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Senior Vice President, Chief Financial Officer and Treasurer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each the signer of such certificate has carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice by the Commission objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on 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 Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at At the Execution Time and at the Closing Date, the Company shall have requested and any settlement date, caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(f) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningscondition, 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 Disclosure Package or the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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).
(ih) FINRA shall not have raised any objection with respect During the period from the Execution Time to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to including the Closing Date, there shall not have occurred a downgrading in the Sponsor rating assigned to the Securities or any of the Company’s debt securities or commercial paper by any “nationally recognized statistical rating agency,” as that term is defined by the Commission in Section 3(a)(62) of the Exchange Act, and no such securities rating agency shall have caused an agreed amount of proceeds from the sale publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Private Placement Units to be deposited into Securities or any of the Trust AccountCompany’s other debt securities.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(ni) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall will be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the UnderwritersCompany, at XxXxxxxx Xxxxxxx & Xxxx LLP, 000 Xxxxxxxxx Xxxx Xxxxx Xxxxxx, Xxx XxxxSuite 2600, Xxx Xxxx 00000Baltimore, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinMD 21202, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Baltimore Gas & Electric Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders 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 and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The 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 Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Ledgewood PCXxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions and negative assurance letter written opinion, dated the Closing Date and any settlement date addressed to the Representative, in substantially the form attached hereto as Exhibit A.
(c) Xxxxx X. Xxxxxxxxx, Esq. shall have furnished to the Representative his written opinion, as Senior Vice President/General Counsel and Corporate Secretary of the Company (and not in his capacity as Chief Financial Officer), dated the Closing Date and addressed to the Representatives Representative, in substantially the form and substance acceptable to the Representatives.attached hereto as Exhibit B.
(cd) The Company Selling Stockholders shall have requested and caused Xxxxxx and Xxxxxx& Xxxxxxx LLP, Cayman Islands counsel for the CompanySelling Stockholders, to have furnished to the Representatives its Representative their opinions dated the Closing Date and any settlement date and addressed to the Representatives Representative, in substantially the form and substance acceptable to the Representatives.attached hereto as Exhibit C.
(de) The Representatives Representative shall have received from Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package and the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters may reasonably require, and the Company Company, and the Selling Stockholders shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer or and the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Disclosure Package and the Final Prospectus, the Prospectus and any amendment amendments or supplement thereto, as well as each road show used in connection with the Offering, supplements 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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).
(fg) The Company Each Selling Stockholder shall have furnished to the Representatives Representative a certificate certificate, signed by the Secretary or on behalf of the Companysuch Selling Stockholder, dated the Closing Date Date, to the effect that the signer(s) of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any settlement datesupplements or amendments thereto and this Agreement, certifying (i) and that the Charter is true representations and complete, has not been modified and is warranties of such Selling Stockholder in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are true and correct in full force all material respects on and effect and have not been modified, (iii) copies as of all written correspondence between the Company or its counsel and the Commission, and (iv) as Closing Date to the incumbency of same effect as if made on the officers of the Company. The documents referred to in such certificate shall be attached to such certificateClosing Date.
(gh) The Company shall have requested and caused Withum Deloitte & Touche LLP to have furnished to the RepresentativesRepresentative, at the Execution Applicable Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Applicable Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, Representative (x) confirming that they are it is an independent public accountant under the guidelines of the AICPA and (y) stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Disclosure Package and the Final Prospectus, as of a registered public accounting date not more than three days prior to such date), the conclusions and findings of such 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, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information and other matters covered by accountants “comfort letters” to underwriters in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterconnection with registered public offerings.
(hi) 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 Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(h) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from Company and the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company Selling Stockholders shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(k) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange.
(m) As of the date of this Agreement, the Representative shall have received a “lock-up” agreement addressed to the Underwriters substantially in the form of Exhibit D hereto from each shareholder of the Company listed on Schedule V hereto (each such letter, a “Lock-up Agreement”). If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesRepresentative. 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 Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 TimeApplicable Time of Sale, the Execution 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 Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d), 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 by the Commission 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 Ledgewood PCXxXxxxxx Xxxxxxx & Xxxx LLP, special counsel for the Company, to shall have furnished to the Representatives its opinions opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives in a form and substance acceptable to the Representativesmutually agreed upon.
(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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives[Reserved].
(d) The Representatives shall have received from Xxxxx Xxxx Winston & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the 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. In rendering such opinion, Winston & Xxxxxx LLP may rely, as to matters governed by the laws of the State of Maryland, upon the opinion of special counsel for the Company referred to in Section 6(b).
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer President and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 road show used in connection with the Offering, and this Agreement thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice by the Commission objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on 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 Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at At the Execution Time and at the Closing Date, the Company shall have requested and any settlement date, caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(f) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningscondition, 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 Disclosure Package or the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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).
(ih) FINRA shall not have raised any objection with respect During the period from the Execution Time to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to including the Closing Date, there shall not have occurred a downgrading in the Sponsor rating assigned to the Securities or any of the Company’s debt securities or commercial paper by any “nationally recognized statistical rating agency,” as that term is defined by the Commission in Section 3(a)(62) of the Exchange Act, and no such securities rating agency shall have caused an agreed amount of proceeds from the sale publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Private Placement Units to be deposited into Securities or any of the Trust AccountCompany’s other debt securities.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(ni) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall will be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the UnderwritersCompany, at XxXxxxxx Xxxxxxx & Xxxx LLP, 000 Xxxxxxxxx Xxxx Xxxxx Xxxxxx, Xxx XxxxSuite 2600, Xxx Xxxx 00000Baltimore, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinMD 21202, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Baltimore Gas & Electric Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Units and the Option SecuritiesUnits, 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 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 Ledgewood PCDxxxx Xxxx & Wxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in a form and substance reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx Mxxxxx and XxxxxxCalder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in a form and substance acceptable satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Ropes & Xxxxxxxx Gxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each the signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary or the Assistant Secretary of the Company, dated the Closing Date and any settlement dateDate, certifying (i) that the Charter is Amended and Restated Memorandum and Articles of Association of the Company are true and complete, has have not been modified and is are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunderthereunder and that they have performed a review of the audited financial statements of the Company as of January [●], 2021 and for the period from November 20, 2020 (date of inception) through January [●], 2021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, and reporting on financial or statistical nature (which is limited to accounting, financial or statistical information derived from the other procedures performed by them in respect general accounting records of the financial information Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (g(g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(g) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, business ) or properties prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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).
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) 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.
(jk) 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 Representatives.
(kl) On or prior to the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Private Placement Warrant Purchase Agreement, the Insider Letter, the Millennium Purchase Registration Rights Agreement and the Administrative Services Agreement.
(lm) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of purchase price for the Private Placement Units Warrants to be 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 net forth on the cover of the Prospectus.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hhSection 5(g) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Ropes & Xxxxxxxx Gxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx1000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Pxxx X. Xxxxxxxxx, Xx.Xxxxx and Cxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Constellation Acquisition Corp I)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 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) 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 Ledgewood PCXxxxxx & Xxxxxx, LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory 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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any or settlement date, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such the Closing Date or settlement date with the same effect as if made on such the Closing Date or 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 such the Closing Date or settlement 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 amendment or 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 amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(ge) The Company shall have requested and caused Withum BDO to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any Date or settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any Date or settlement date, in form and substance satisfactory to the Representatives.
(f) The Company shall have requested and caused Xxxxx Xxxxx to have furnished to the Representatives, confirming that they are a registered public accounting at the Execution Time and the Closing Date, letters dated respectively as of the Execution Time and Closing Date or settlement date, in form and substance reasonably satisfactory to the Representatives and stating the conclusions and findings of such firm that is independent with respect to the Company within the meaning of the Act reserve and the Exchange Act other operational information and the applicable rules and regulations adopted by the Commission thereunder, that other matters as is customary to underwriters in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus comply as to form in all material respects connection with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterregistered public offerings.
(hg) Subsequent 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ih) FINRA shall not have raised any objection with respect Prior to the fairness or reasonableness of Closing Date, the underwriting or other arrangements of Company shall have furnished to the transactions contemplated herebyRepresentatives such further information, certificates and documents as the Representatives may reasonably request.
(ji) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq NASDAQ Capital Market, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(kj) On At the Effective DateExecution Time, the Company shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit A hereto from each officer and director of the Trust Agreement, Company and major stockholder listed on Schedule IV addressed to the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services AgreementRepresentatives.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nk) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx 00000Xxxxxxx, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, Xxxxx 00000 on the Closing Date and any applicable or settlement 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 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, 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 Ledgewood PCDickxxxxx Xxxgxx XXXC, counsel for Special Counsel to the Company, and Arnoxx X. Xxxxxxx, Xxq., General Counsel to the Company, to have furnished to the Representatives its opinions and negative assurance letter dated the Closing Date and any settlement 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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettertheir opinion, dated the Closing Date and any settlement date and addressed to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Chief Financial Officer of the Company, dated the Closing Date and any settlement date, in combination to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties Company meets the requirements for the use of the Company in this Agreement are true and correct on and as of such date with Form S-3 under the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such dateAct;
(ii) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) have 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 oror threatened, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Registration Statement and the Final 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that 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 as to which such counsel need express no opinion) comply as to form in all material respects with the applicable accounting requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder;
(iii) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Final Prospectus (other than the financial statements and supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which such counsel need not express an opinion), when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information Commission thereunder;
(iv) All descriptions in the Registration StatementStatement of contracts and other documents to which the Company or its subsidiaries are a party are accurate in all material respects; to the best of such counsel's knowledge, there are no franchises, contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Statutory Prospectus Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the Prospectus. References descriptions thereof or references thereto are correct in all material respects, and, to the best of such counsel's knowledge, no default exists in the due performance or observance of any obligation, agreement, covenant or condition contained in such contracts and other documents (except for such defaults that would not have a Material Adverse Effect);
(v) no holders of securities of the Company have rights under the Company's charter or by-laws or any other agreement or contract to the registration of such securities under the Registration Statement;
(vi) the Securities conform to the description thereof contained in the Final Prospectus in all material respects;
(vii) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and (assuming due authorization, execution and delivery thereof by the Trustee) constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this paragraph (gAgreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law). The Securities will be in the form contemplated by, and each registered holding thereof, will be entitled to the benefits of the Indenture;
(viii) include the Remarketing Agreement has been duly authorized, executed and delivered by the Company, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law);
(ix) each of the Company and the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, 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 Final Prospectus, and
(x) all the outstanding shares of capital stock of the Company and of each of the Subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of each of the Subsidiaries are owned of record by the Company either directly or through wholly owned Subsidiaries free and clear of any supplement thereto at perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(xi) the authorized, issued and outstanding capital stock of the Company is as set forth in the Final Prospectus under the captions "Description of Capital Stock", "Selected Financial Information", and "Capitalization" (except for subsequent issuances, if any, pursuant to reservations, agreements or employee benefit plans or the Company's Direct Stock Purchase and Dividend Reinvestment Plan referred to in the Final Prospectus or the exercise of options outstanding on the date of the applicable letter.
(h) Subsequent Final Prospectus or issued pursuant 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 letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company, whether or not arising from transactions existing employee benefit plans in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed business consistent with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereofpast practice), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement 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 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) 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 Ledgewood PCXxxxxxx Procter LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in a form and substance reasonably acceptable to the Representatives.
(c) The Company Representatives shall have requested and caused Xxxxxx and Xxxxxxreceived from XX Xxxx, Cayman Islands PC, intellectual property counsel for the CompanyUnderwriters, to have furnished to the Representatives its opinions such opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, with respect to the RepresentativesCompany’s intellectual property and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 amendment or 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 amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum CohnReznick LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning containing statements and information of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules type ordinarily included in the Registration Statement, the Statutory Prospectus and the Prospectus comply as accountants “comfort letters” 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterunderwriters.
(hg) Subsequent 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Capital Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director and certain equityholders of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx0xx Xxx, Xxx Xxxx, Xxx Xxxx XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Compass Therapeutics, 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 Section 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The 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 Ledgewood PCSkadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in the form and substance acceptable to the Representativesset forth in Exhibit C thereto.
(cd) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx LLP, Cayman Islands Maryland counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in the form and substance acceptable to the Representativesset forth in Exhibit D thereto.
(de) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus Supplement (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum BDO Xxxxxxx, LLP to have furnished to the Representatives, at the Execution Applicable Time and at the Closing Date, and any settlement dateletters, 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, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the 1933 Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunderthereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, that 2009, and as at March 31, 2009, 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, 2009, and reporting on the other procedures performed by them in respect of the financial information as at March 31, 2009 included in the Registration Statement, the Statutory Preliminary Prospectus and the ProspectusProspectus 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 March 31, 2009, there were any changes, at a specified date not more than five days prior to the date of the letter, in the credit facility payable or payable for securities purchased or decreases in the net assets as compared with the amounts shown on the March 31, 2009 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, 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 Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus Supplement and in Exhibit 12 to the Registration Statement, including the information set forth under the caption “Selected Condensed Financial Data” in the Preliminary Prospectus and the Prospectus Supplement. References to the Prospectus Supplement in this paragraph (g(g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (g(g) of this Section 6 Section 7 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus Supplement (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) 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 has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) On or before the date hereof, the Company shall have procured for the benefit of the Underwriters lock-up agreements, in the form of Exhibit 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) 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, Xxxxxxx & Xxxx 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) and 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 obligations of the several Underwriters to purchase the relevant Option Securities, may be terminated by the Underwriters by notice to the Company at any time at or prior to Closing Date or such Date of Delivery, as the case may be, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 2, 9 and 14 shall survive any such termination and remain in full force and effect. If any of the conditions specified in this Section 6 Section 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 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 any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 Section 7 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx Xxxx, 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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, 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 Ledgewood PCHxxxx & Hxxxxxx L.L.P., U.S. counsel for the Company, to have furnished to the Representatives its Representative their opinions and negative assurance letter dated substantially in the Closing Date and any settlement date and addressed to the Representatives forms set forth 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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance letterExhibit D hereto, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative.
(c) The Representative shall have received from Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such the Closing Date and any settlement date with the same effect as if made on such the Closing Date and any settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such the Closing Date and any settlement date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(ge) The Company shall have requested and caused Withum PricewaterhouseCoopers LLP to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, Date and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, Date and any settlement date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are a its 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 respective applicable rules and regulations adopted by the Commission thereunder, that thereunder and stating to the 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 Exchange Act and the related rules and regulations adopted by the Commission, and reporting ;
(ii) on the other procedures performed by them in respect 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 September 30, 2007 and as at September 30, 2007; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the shareholders, directors and audit and corporate governance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to June 30, 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 Statutory Preliminary Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus;
(2) with respect to the period subsequent to September 30, 2007, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its subsidiaries or capital stock of the Company as compared with the amounts shown on the September 30, 2007 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representative;
(3) the information included or incorporated by reference in the Registration Statement, the Preliminary Prospectus, the Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), is not in conformity with the applicable disclosure requirements of Regulation S-K; and they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus, the Final Prospectus and in Exhibit 12.1 of the Registration Statement, including the information set forth under the captions “Prospectus Supplement Summary,” “Risk Factors,” “Dividend History” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, the information set forth under the captions “The Company,” “Ratio of Earnings to Fixed Charges and Preferred Stock Dividends,” and “Description of Common Stock” in the Prospectus, the information the Company’s Definitive Proxy Statement, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the information in Items 1, 1A, 2, 5, 6, 7, 7A and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the information in Items 1A, 2 and 3 of the Company’s Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and the information in Items 1.01, 2.01, 2.02, 8.01 and 9.01 of the information in the Company’s Current Reports on Form 8-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (g(e) include any supplement thereto at the date of the applicable letter.
(hf) Subsequent 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 (g(e) of this Section Section 6 or (ii) any changeMaterial Adverse Effect, or any development involving a prospective change, in or affecting the condition (financial or 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 RepresentativesRepresentative, 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(ng) Prior to the Closing Date and any settlement date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(1) Any Common Stock issuable upon conversion of, or as a dividend on, the Securities shall have been approved for listing on the NASDAQ Global Select Market and the Toronto Stock Exchange, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representative and (2) the Company shall have filed the Certificate of Designation with the Delaware Secretary of State.
(i) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A to this Agreement from each officer and director of the Company addressed to the Representative. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Cxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx Hxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxOxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 and, if applicable, any additional 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); any material required to be filed by the Company pursuant to Rule 433(d) under the 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 Ledgewood PCXxxxxx & Xxxxxxx LLP, U.S. counsel for the Company, to Company shall have furnished to the Representatives its opinions their opinion and negative assurance letter 10b-5 letter, each dated the Closing Date and and, if applicable, any additional settlement date date, as the case may be, and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxNaschitz, Cayman Islands Xxxxxxx, Xxxx & Co., Advocates, Israeli counsel for the Company, to shall have furnished to the Representatives its opinions their opinion, dated the Closing Date and and, if applicable, any additional settlement date date, as the case may be, and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx & Xxxxxxxx LLP, U.S. counsel for the Underwriters, its opinions such opinion and negative assurance 10b-5 letter, each dated the Closing Date Date, and if applicable, any additional settlement date date, as the case may be, and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received from Xxxxxxxx Xxxxxxxx & Co., Israeli counsel for the Underwriters, such opinion, dated the Closing Date and, if applicable, any additional settlement date, as the case may be, and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) Xxxxxxxxx Xxxxxxx Xxxx & Xxxxx LLP, counsel for the Depositary, shall have furnished to the Representatives their opinion, dated the Closing Date and, if applicable, any additional settlement date, as the case may be, and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and and, if applicable, any additional settlement date, as the case may be, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date and, if applicable, any additional settlement date, as the case may be, with the same effect as if made on such date the Closing Date and, if applicable, any additional 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 such the Closing Date and, if applicable, any additional settlement 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(gh) The Company shall have requested and caused Withum Somekh Xxxxxxx, a member firm of KPMG International, to have furnished to the Representatives, at the Execution Time and Time, at the Closing DateDate and if applicable, and any additional settlement date, as the case may be, letters, dated respectively as of the Execution Time and as of the Closing DateDate and if applicable, and any additional settlement date, as the case may be, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hi) Subsequent 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 (g(h) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ij) FINRA [The Company shall not have raised furnished to the Representatives a certificate, dated the Closing Date and, if applicable, any objection additional settlement date, as the case may be, addressed to the Representatives, of its chief financial officer with respect to certain financial data contained in the Registration Statement, the Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives.]
(k) The Custodian shall have furnished to the Representatives, dated the Closing Date and, if applicable, any additional settlement date, as the case may be, a certificate satisfactory to the Representatives of one of its authorized officers with respect to the fairness or reasonableness deposit with it of the underwriting or other arrangements Ordinary Shares represented by the Securities in the form of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services AgreementADSs.
(l) At least one (1) Business Day prior The Depositary shall have furnished or cause to be furnished to the Representatives, dated the Closing DateDate and, if applicable, any additional settlement date, as the Sponsor shall have caused an agreed amount of proceeds from case may be, certificates satisfactory to the sale Representatives evidencing the deposit with it of the Private Placement Units Securities being so deposited against issuance of ADRs evidencing the ADSs to be deposited into delivered by the Trust AccountCompany at the Closing Date and if applicable, any additional settlement date, and the execution, countersignature (if applicable), issuance and delivery of ADRs evidencing such ADSs pursuant to the Deposit Agreement.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and if applicable, any additional settlement date, as the case may be, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) Subsequent to the Execution Time, to the extent the Company has rated securities, 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.
(o) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq, and satisfactory evidence of such actions shall have been provided to the Representatives.
(p) The FINRA, upon review, if any, of the terms of the public offering of the Securities, shall not have objected to such offering, such terms or the Underwriters’ participation in same.
(q) Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each officer and director of the Company 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 Ordinary Shares or ADSs with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(r) On the Closing Date, the Securities in the form of ADSs shall have been approved for listing on the Nasdaq, subject only to official notice of issuance. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or and if applicable, any applicable additional settlement date date, as the case may be, by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and if applicable, any applicable additional settlement date, as the case may be, provided that unless physical delivery is requested in writing by the Representatives, such documents may be delivered electronically.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Firm Shares and the Option SecuritiesAdditional Shares on the Closing Date or any Date of Delivery, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Operating Partnership contained herein as of the Execution Timedate hereof, the Closing Date and any settlement date pursuant to Section 3 hereofDate of Delivery, to the accuracy of the statements of the Company and the Operating Partnership made in any 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 of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of the Act, 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)) of the Act; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Ledgewood PCCxxxxx Godward LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter dated the Closing Date and any settlement 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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance letterRepresentative their opinion, dated the Closing Date and any settlement date Date of Delivery, and addressed to the RepresentativesRepresentative, in the form mutually agreed upon, and their opinion, dated the Closing Date and any Date of Delivery, and addressed to the Representative, in form reasonably satisfactory to the Representative, that the Company is qualified to be taxed as a REIT pursuant to sections 856 through 860 of the Code for its taxable year ended December 31, 2004 and that the Company’s current organization and proposed method of operation will enable it to continue to qualify as a REIT for its taxable year ending December 31, 2005 and in the future.
(c) The Representative shall have received from Bass, Bxxxx & Sxxx PLC, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any Date of Delivery, and addressed to the Representative, with respect to the issuance and sale of the Shares, the Registration Statement, 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.
(ed) The Company and the Operating Partnership shall have furnished to the Representatives Representative a certificate of the Companycertificate, signed by the Chief Executive Officer or Chief Financial Officer Chairman of the CompanyBoard or the President and the principal financial or accounting officer of the Company (and appropriate officer of the Operating Partnership), dated the Closing Date and any settlement dateDate of Delivery, to the effect that each signer the signers of such certificate has 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 road show used in connection with the Offering, 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 such date the Closing Date (and any Date of Delivery) with the same effect as if made on such date the Closing Date (or any Date of Delivery), and the Company has and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to such datethe Closing Date (or any Date of Delivery);
(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 and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company On the date of this Agreement and on the Closing Date (including any Date of Delivery, as the case may be) PricewaterhouseCoopers LLP shall have furnished to the Representatives a certificate signed by Representative, at the Secretary request of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as the respective dates of delivery thereof and addressed to the Execution Time and as of the Closing Date, and any settlement dateUnderwriters, in form and substance reasonably satisfactory to the RepresentativesRepresentative, 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 of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that 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 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus Statement and the Prospectus. References ; provided, that the letter delivered on the Closing Date or any Date of Delivery, as the case may be, shall use a “cut-off” date no more than three (3) Business Days prior to the Prospectus in this paragraph (g) include any supplement thereto at the date such Closing Date or such Date of the applicable letterDelivery.
(hf) Subsequent to the Execution Time date hereof 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at to the office of Xxxxx Xxxx Bass, Bxxxx & Xxxxxxxx LLPSxxx PLC, counsel for the Underwriters, at 000 100 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on xn the Closing Date and any applicable settlement dateDate of Delivery, 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 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, 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 Ledgewood PCXxxx, Xxxx & Xxxxx LLP, special counsel for the CompanyCompany and Xxxxxx X. Xxxx, General Counsel of the Company to have furnished to the Representatives its their opinions substantially in the forms set forth in Exhibit D and negative assurance letter dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxExhibit E hereto, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance letterrespectively, dated the Closing Date and any settlement date and addressed to the Representatives.
(c) The Representatives shall have received from Shearman & Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement thereto, as well as each road show used in connection with the Offering, 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 such the Closing Date and any settlement date with the same effect as if made on such the Closing Date and any settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such the Closing Date and any settlement date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company At the time of the execution of this Agreement, the Representatives shall have furnished to the Representatives received from BDO Xxxxxxx, LLP a certificate signed by the Secretary of the Company, letter dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the certain financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given contained 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 letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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 Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)Final Prospectus.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(lf) At least one (1) Business Day prior to the Closing Date, the Sponsor Representatives shall have caused an agreed amount received from BDO Xxxxxxx, LLP a letter, dated as of proceeds from Closing Date, to the sale effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the Private Placement Units specified date referred to shall be deposited into the Trust Accounta date not more than three business days prior to Closing Date.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(ng) 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 Representatives may reasonably request.
(h) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A to this Agreement from each officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Shearman & Xxxxxxxx Sterling, LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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) shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused Ledgewood PCRopes & Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the RepresentativesRepresentatives and counsel to the Underwriters.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxx & Lardner LLP, Cayman Islands special intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the RepresentativesRepresentatives and counsel to the Underwriters.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer President and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(f) of this Section Section 6 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 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 (iclauses (i) or (iiand (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(j) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and substantially all holders of the Company’s equity securities addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, at 000 Xxxxxxxxx 53 Xxxxx Xxxxxx, Xxx XxxxXxxxxx, Xxx Xxxx Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Supernus 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 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 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 Ledgewood PCXxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, each dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form previously agreed to by, and substance acceptable to reasonably satisfactory to, the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands Xxxxxxx, Xxxxxxxxx & Xxx, P.L.L.C., intellectual property counsel for the Company, to have furnished to the Representatives its such opinion or opinions dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form previously agreed to by, and substance acceptable to reasonably satisfactory to, the Representatives.
(d) The Company shall have requested and caused NautaDutilh N.V., Dutch counsel for the Company, to have furnished to the Representatives such opinion or opinions dated the Closing Date and addressed to the Representatives, in the form previously agreed to by, and reasonably satisfactory to, the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions such opinion and negative assurance letter, each dated the Closing Date and any settlement date and addressed to the Representatives, in the form previously agreed to by, and reasonably satisfactory to, the Representatives, 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.
(ef) The Representatives shall have received from Van Doorne N.V., Dutch counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer or Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each the signer of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse EffectEffect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(gh) The Company shall have requested and caused Withum KPMG Accountants N.V. to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives.
(i) The Company shall have furnished to the Representatives a certificate, confirming that they are a registered public accounting firm that is independent dated the respective dates of delivery addressed to the Representatives, of its Chief Financial Officer 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, that in their opinion the audited certain financial statements and financial statement schedules included data contained in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration StatementDisclosure Package, the Statutory Prospectus Prospectus, providing “management comfort” with respect to such information, in form and the Prospectus. References substance reasonably satisfactory to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterRepresentatives.
(hj) Subsequent 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 letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(l) The Securities shall be listed and authorized for trading on The Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) At the Execution Time, the Company shall have furnished to the Representatives a signed lock-up agreement substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each director and member of senior management of the Company and each other person listed on Schedule IV hereto. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx00 Xxxxxx Xxxxx, Xxx XxxxNew York, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, XxNew York 10001., unless otherwise indicated herein, on the Closing Date and any applicable settlement date.
Appears in 1 contract
Samples: Underwriting Agreement (Merus N.V.)
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 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 Ledgewood PCDxxxx Xxxx & Wxxxxxxx LLP, counsel for the Company, to have furnished furnish to the Representatives Representative its opinions opinion and negative assurance letter 10b-5 statement, dated the Closing Date and any settlement date and addressed to the Representatives Representative, in substantially the form and substance acceptable to the Representativesof Annex B hereto.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxJxxxxx X. Xxxx, Cayman Islands in-house counsel for the Company, to have furnished furnish to the Representatives its opinions Representative his opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representative, in substantially the form and substance acceptable to the Representativesof Annex C hereto.
(d) The Representatives Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, the firm listed in the underwriting agreement as counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by (x) the Chief Executive Officer or and (y) the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 road show used in connection with the Offering, and this Agreement and thatthat to the best of their knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such datethe 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 EffectEffect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at At the Execution Time and at the Closing Date, the Company shall have requested and any settlement date, caused Ernst & Young LLP to furnish to the Representative letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, Date in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterRepresentative.
(hg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Disclosure Package (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (g(f) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(ih) 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 listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(ni) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, the underwriters’ counsel for set forth in the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinUnderwriting Agreement, on the Closing Date and any applicable settlement dateDate.
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 Issuer contained herein as of at the Execution Time, the Closing Date and or any settlement date pursuant to Section 3 hereofAdditional Closing Date, to the accuracy of the statements of the Issuer made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Issuer 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 Issuer shall have requested and caused Ledgewood PCXxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the CompanyIssuer, to have furnished furnish to the Representatives its opinions opinion and negative assurance letter disclosure letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in form the forms attached hereto as Exhibits A-1 and substance acceptable to the RepresentativesA-2, respectively.
(c) The Company Issuer shall have requested and caused Xxxxxxx Xxxx & Xxxxxxxxx LLP, special counsel for the Issuer, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit B-1.
(d) The Issuer shall have requested and caused Xxxxxx and XxxxxxGroup LLP, Cayman Islands counsel for the CompanyIssuer, to have furnished furnish to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to Cayman Law matters and other related matters as the Representatives in form and substance acceptable to the Representativesmay reasonably require.
(de) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Disclosure Package, the Final Prospectus (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company Representatives shall have furnished to received on the Representatives a certificate of the Company, signed by the Chief Executive Officer or Chief Financial Officer of the CompanyClosing Date:
(i) certificates, dated the Closing Date and any settlement dateeach signed by an executive officer of the Issuer, on behalf of the Issuer to the effect that (x) each signer of the signers of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, Disclosure Package and the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
Agreement, (iy) the representations and warranties of the Company Issuer contained in this Agreement are true and correct on and as of such date with the same effect as if made on such date Closing Date and that the Company Issuer has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at hereunder on or prior to such date;
before 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
(iiiz) 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 amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise) earnings, business or properties of the Issuer and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)., provided that any executive officer signing and delivering such certificate may rely upon his or her knowledge as to proceedings threatened; and
(fii) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Companycertificate, dated the Closing Date and any settlement date, certifying (i) that signed by the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency chief financial officer of the officers Issuer on behalf of the Company. The documents referred to Issuer substantially in such certificate shall be the form attached to such certificate.hereto as Exhibit C.
(g) The Company At the Execution Time and at the Closing Date or any Additional Closing Date, as the case may be, Deloitte & Touche LLP and PricewaterhouseCoopers LLP shall have requested and caused Withum to each have furnished to the Representatives, at the Execution Time and at request of the Closing DateIssuer, and any settlement date, their respective letters, dated respectively as of the Execution Time Time, as of the Closing Date and as of the Additional Closing Date, as the case may be, and any settlement dateaddressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, 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 of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and certain financial statement schedules included information contained or incorporated by reference in each of the Registration StatementDisclosure Package, the Statutory Preliminary Prospectus and the Prospectus comply as to form in all material respects with Final Prospectus; provided that the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting letter delivered on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References Closing Date or any Additional Closing Date shall use a “cut-off” date no more than three business days prior to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterClosing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Disclosure Package (exclusive of any amendment thereof), the Statutory Prospectus or supplement thereto) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(g) of this Section 6 Section 6; 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 CompanyIssuer and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by in the Registration Statement Disclosure Package and the Final Prospectus (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any or supplement thereto).
(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 Issuer’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 listed subject to notice On or before the Closing Date, the Certificate of issuance on the Nasdaq Capital Market, satisfactory evidence of which Designation shall have been provided filed under applicable Delaware law and become effective and the Issuer shall have delivered evidence of such filing and effectiveness to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to or before the Closing Date, the Sponsor Issuer shall have caused an agreed amount filed the requisite listing application with the NYSE for the listing of proceeds from a number of Underlying Shares equal to the sale Maximum Number of Underlying Shares on the Private Placement Units NYSE (subject to be deposited into adjustments as described in the Trust AccountCertificate of Designation).
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nl) Prior to the Closing Date and or any settlement dateAdditional Closing Date, as the case may be, the Company Issuer shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date or any applicable settlement date Additional Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Issuer in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall will be delivered at the office of counsel for the Underwriters, Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and or any applicable settlement dateAdditional Closing Date, as the case may be.
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 Settlement Date pursuant to Section 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) 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 Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxxx Xxxxxxx LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Executive Chairman or the Chief Executive Officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 amendment or 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 amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives.
(g) The Securities shall have been listed and admitted and authorized for trading on Nasdaq, confirming that they are a registered public accounting firm that is independent with respect and satisfactory evidence of such actions shall have been provided to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterRepresentatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness At or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateExecution Time, the Company shall have furnished to the Representatives such further information, certificates a letter in the form of Exhibit A hereto from each officer and documents as director of the Representatives may reasonably requestCompany and all holders of the Company’s equity securities addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone telephone, facsimile or facsimile electronic mail confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxXxxxx Xxxxx, Xxx XxxxMenlo Park, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinCalifornia 94025, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Mirum 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 Issuers 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 Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Issuers pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused Ledgewood PCXxxxx Day, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesattached as Exhibit A hereto.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx X’Xxxxx, Cayman Islands general counsel for the Company, to have furnished to the Representatives its opinions his opinion, dated the Closing Date and any settlement date addressed to the Representatives, in substantially the form attached as Exhibit B hereto.
(d) The Company shall have requested and caused Gilbride, Tusa, Last & Xxxxxxxx, LLC, special local counsel for Omnicom Capital Inc., to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesattached as Exhibit C hereto.
(de) The Representatives shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the CompanyIssuers, signed by an Executive Vice President and the Chief Executive Officer principal financial or Chief Financial Officer accounting officer of each of the CompanyIssuers, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Final Prospectus, the Prospectus Disclosure Package and any amendment supplements or supplement amendments thereto, as well as each road show electronic roadshow used in connection with to offer the Offering, securities identified on Schedule V and this Agreement and that:
(i) the representations and warranties of the Company Issuers in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 any of the Company’s Issuers’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, that thereunder and containing statements and information of the type customarily included in their opinion accountants’ “comfort letters” to underwriters with respect to 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 comply as to form in all material respects with Final Prospectus; provided that the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting letter delivered on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References Closing Date shall use a “cut-off” date no more than three business days prior to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterClosing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(g) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and and, subject to Section 11 hereof, all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 Ledgewood Xxxxxxxxxx Xxxxxxx PC, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter assurances letter, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, substantially to the Representativeseffect set forth in Exhibit A hereto.
(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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed on behalf of the Company by the Chairman of the Board or the Chief Executive Officer or Chief Financial Officer an Executive Vice President or Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 amendment or 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 the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(ge) The Company shall have requested and caused Withum Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and any settlement datesubstance reasonably satisfactory to the Representatives to the extent set forth in Exhibits B-1 and B-2 respectively.
(f) The Company shall have requested and caused KPMG Xxxxxxxx Xxxxx, S.C. to have furnished to the Representatives, at the Execution Time, a letter, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect Representatives to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that extent set forth in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.Exhibit C.
(hg) Subsequent 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 (g(e) of this Section Section 6 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 CompanyCompany and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Representatives shall have received letters, dated, respectively, the date hereof and the Closing Date, executed by the Chief Financial Officer or Chief Accounting Officer of the Company, in the form of Exhibit D-1 and D-2 respectively.
(k) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit E hereto from Tower International Holdings, LLC (“Tower Parent”), each officer and director of the Company and each stockholder or member of the Company or Tower Parent, including Tower Automotive Management, LLC, addressed to the Representatives.
(m) The Corporate Conversion shall have been consummated in the manner set forth in the Disclosure Package. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 Ledgewood PCXxxxxx LLP , counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, each dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx each of Xxxxx Xxxx LLP and XxxxxxDechert LLP, Cayman Islands each intellectual property counsel for the Company, to have furnished to the Representatives its opinions their respective opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer principal executive officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company Representatives shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representativesreceived from Ernst & Young LLP, at the Execution Time and at the Closing Date, and any settlement date, comfort letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(g) of this Section Section 6 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 CompanyCompany 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) To the extent that there are outstanding any debt securities of the Company rated by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act), then subsequent to the Execution Time, there shall not have been any decrease in the rating of such debt securities by any “nationally recognized statistical rating organization” or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the holders of equity securities of the Company set forth on Schedule III hereto addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, at 000 Xxx Xxxxxxxxx Xxxxxx, Xxx XxxxXxxxxx, Xxx Xxxx Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Calithera Biosciences, 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 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 shall have requested and caused Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions Representative their opinion and negative assurance letter letter, each dated the Closing Date and any settlement date and addressed to the Representatives Representative in form and substance acceptable reasonably satisfactory to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx each of Xxxxx Xxxx LLP and XxxxxxDechert LLP, Cayman Islands each intellectual property counsel for the Company, to have furnished to the Representatives its opinions Representative their respective opinion, each dated the Closing Date and any settlement date and addressed to the Representatives Representative in form and substance acceptable reasonably satisfactory to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer principal executive officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or 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 amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, and any settlement date, letterscomfort 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 reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterRepresentative.
(hg) Subsequent 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 (g(f) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(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 subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered furnished to the Representatives executed copies of Representative, at the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement Execution Time and the Services Agreement.
(l) At least one (1) Business Day prior to at the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale a certificate, dated respectively as of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued Execution Time and as of the Closing Date, of its principal financial officer and no proceedings for that purpose shall have been instituted or shall have been threatenedprincipal accounting officer, with respect to certain financial data contained in the Disclosure Package and the Final Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative.
(ni) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(j) To the extent that there are outstanding any debt securities of the Company rated by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act), the 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” 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 Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representative.
(l) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each officer and director of the Company addressed to the Representative. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxxxx Xxxxxx, Xxx XxxxRedwood City, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinCalifornia 94063, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Calithera Biosciences, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities ADSs and the Option SecuritiesADSs, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein in this Agreement as of the Execution Time, the Closing Date and any settlement date Settlement Date pursuant to Section 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 under this Agreement 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) 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 the ADR Registration Statement or any notice objecting to its their 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 Ledgewood PCXxxxxx LLP, U.S. counsel for the Company, to have furnished to the Representatives Representatives, the form and substance reasonably satisfactory to the Representatives, its opinions and negative assurance letter opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(c) The Company shall have requested and caused CYL & Partners in Association with Xxxxxx XX, Hong Kong counsel for the Company, to have furnished to the Representatives, in the form and Xxxxxxsubstance reasonably satisfactory to the Representatives, its opinion, dated the Closing Date and addressed to the Representatives.
(d) The Company shall have requested and caused XxxXxxxxx Law Offices, PRC counsel for the Company, to have furnished to the Representatives, in the form and substance reasonably satisfactory to the Representatives, its opinion, dated the Closing Date and addressed to the Representatives.
(e) The Company shall have requested and caused Xxxxxx Westwood & Riegels, Cayman Islands counsel for the Company, to have furnished to the Representatives Representatives, in the form and substance reasonably satisfactory to the Representatives, its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(df) The Company shall have requested and caused Xxxxxx Westwood & Riegels, British Virgin Island counsel for the Company, to have furnished to the Representatives, in the form and substance reasonably satisfactory to the Representatives, its opinion, dated the Closing Date and addressed to the Representatives.
(g) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, U.S. intellectual property counsel for the Company, to have furnished to the Representatives, in the form and substance reasonably satisfactory to the Representatives, its opinion, dated the Closing Date and addressed to the Representatives.
(h) The Company shall have requested and caused XxxXxxxxx Law Offices, PRC intellectual property counsel for the Company, to have furnished to the Representatives, in the form and substance reasonably satisfactory to the Representatives, its opinion, dated the Closing Date and addressed to the Representatives.
(i) The Depositary shall have requested and caused Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, to have furnished to the Representatives in the form and substance reasonably satisfactory to the Representatives, its opinion, dated the Closing Date and addressed to the Representatives.
(j) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPLLP and Zhong Lun Law Firm, counsel counsels for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ek) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the ADR Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or of any notice objecting to its their 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 amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), prospects, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(gl) The Company shall have requested and caused Withum PricewaterhouseCoopers Xxxxx Xxxx LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by contain statements and information of the Commission thereunder, that type customarily included in their opinion accountants’ “comfort letters” to underwriters with respect to the audited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus Pricing Disclosure Package and the Prospectus; provided, that the letters delivered on the date of this Agreement and on the Closing Date shall use a “cut-off” date no more than three days prior to the date of this Agreement or such Closing Date, as the case may be. References to the Prospectus in this paragraph (g(l) include any supplement thereto at the date of the applicable letter.
(hm) Subsequent 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 (g(l) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(in) FINRA The Company and the Depositary shall not have raised any objection with respect executed and delivered the Deposit Agreement in form and substance satisfactory to the fairness or reasonableness of Representatives and the underwriting or other arrangements of the transactions contemplated herebyDeposit Agreement shall be in full force and effect.
(jo) The Securities Depositary shall have furnished or caused to be duly listed subject furnished to notice the Representatives certificates satisfactory to the Representatives evidencing the deposit with the Custodian of issuance on the Nasdaq Capital Market, satisfactory evidence Shares in respect of which shall have been provided ADSs to be purchased by the Underwriters on such Closing Date are to be issued, and the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing such ADSs pursuant to the RepresentativesDeposit Agreement and such other matters related thereto as the Representatives reasonably request.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(np) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(q) 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.
(r) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(s) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each executive officer, director and existing shareholder of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxThe Hong Kong Club Building, Xxx 0X Xxxxxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinXxxx, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Gracell Biotechnologies Inc.)
Conditions to the Obligations of the Underwriters. The obligations obligation 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 of the execution of this Agreement and the Closing Date and any settlement date pursuant to Section 3 hereofTime, to the accuracy of the statements of the Company made in any certificates delivered by the Company to the Underwriters pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) : The Prospectus, Registration Statement has become effective and any supplement thereto, have been filed in at the manner and within the time period required by Rule 424(b); and Closing Time 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 or proceedings therefor initiated or threatened by the Commission, and no proceedings any request on the part of the Commission for that purpose additional information from the Company shall have been instituted or threatened.
(b) The Company complied with to the reasonable satisfaction of counsel to the Representative. A prospectus containing the Rule 430B Information shall have requested been filed with the Commission in the manner and caused Ledgewood PCwithin the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the Closing Time, the Underwriters shall have received (i) the favorable opinion, dated as of the Closing Time, of Xxxxxx & Xxxxxx L.L.P., counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands counsel for the Underwriters, to the effect set forth in Exhibit A-1 hereto and to such further effect as counsel to the Underwriters may reasonably request, and (ii) the favorable opinion, dated as of the Closing Time, of the General Counsel of the Company, to have furnished to with responsibility for the Representatives legal affairs of the Company and its opinions dated the Closing Date and any settlement date and addressed to the Representatives subsidiaries, in form and substance acceptable satisfactory to counsel for the Underwriters, to the Representatives.
(d) The Representatives effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriters may reasonably request. At the Closing Time, the Underwriters shall have received from the favorable opinion, dated as of the Closing Time, of Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions in form and negative assurance letter, dated the Closing Date and any settlement date and addressed substance reasonably satisfactory to the RepresentativesRepresentative. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriters. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriters shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives received a certificate of the Company, signed by President or a Vice President of the Chief Executive Officer Company and of the chief financial or Chief Financial Officer chief accounting officer of the Company, dated as of the Closing Date and any settlement dateTime, to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Company 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 such date with the same effect as if made on such date and Closing Time, (iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
the Closing 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, to or are pending or are contemplated by the Company’s knowledge, threatened; and
(iii) since Commission. At the date time of the most recent financial statements included in execution of this Agreement, 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).
(f) The Company Underwriters shall have furnished to the Representatives received from Ernst & Young LLP a certificate signed by the Secretary of the Companyletter, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement such date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent 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, that 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 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus General Disclosure Package and the Prospectus. References At the Closing Time, the Underwriters shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the Prospectus effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this paragraph (g) include any supplement thereto at Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time. At the Closing Time, there shall not have been, since the date of hereof or since the applicable letter.
(h) 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 General Disclosure Package, any supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (g) of this Section 6 or (ii) any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (condition, financial or otherwise), or in the earnings, business business, prospects, properties or properties results of operations 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 that, in or the reasonable judgment of the Underwriters, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Statutory Prospectus Prospectus. At the Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the Prospectus (exclusive purpose of any supplement thereto) enabling them to pass upon the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material issuance and adverse as to make it impractical or inadvisable to proceed with the offering or delivery sale of the Securities as contemplated 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 Registration Statement (exclusive of any amendment thereof), Company in connection with the Statutory Prospectus issuance and the Prospectus (exclusive of any supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to Securities as herein contemplated shall be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units satisfactory in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, form and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior substance to the Closing Date Underwriters and any settlement date, counsel for the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably requestUnderwriters. If any of the conditions condition specified in this Section 6 Section 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 Representatives and counsel for the Underwritersfulfilled, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or terminated by the Representative by notice to the Company at any time at or prior to, to the Closing Date or any applicable settlement date by the Representatives. 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 Section 5(m) and except that Sections 1, 7, 8, 9 and 11 shall survive any such termination and remain in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xxfull force and effect., unless otherwise indicated herein, on the Closing Date and any applicable settlement date.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 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 Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives., as attached as Exhibit C.
(c) The Company shall have requested and caused Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and XxxxxxXxxxx PC, Cayman Islands special intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date addressed to the Representatives, as attached as Exhibit D.
(d) The Company shall have requested and caused Dechert LLP, special intellectual property counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives in form and substance acceptable to the Representatives., as attached as Exhibit E.
(di) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the 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.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(g) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect Prior to the fairness or reasonableness of Closing Date, the underwriting or other arrangements of Company shall have furnished to the transactions contemplated herebyRepresentatives such further customary information, certificates and documents as the Representatives may reasonably request.
(j) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the Nasdaq Capital NASDAQ Global Market, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(k) On At the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateExecution Time, the Company shall have furnished to the Representatives such further information, certificates a letter substantially in the form of Exhibit A hereto from each officer and documents as director of the Representatives may reasonably requestCompany and specified holders of the Company’s equity securities addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, at 000 Xxxxxxxxx 00 Xxxxx Xxxxxx, Xxx XxxxXxxxxx, Xxx Xxxx Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 Settlement Date pursuant to Section 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, shall 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 shall have requested and caused Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx and Xxxxxx, Cayman Islands P.C., intellectual property counsel for the Company, to have furnished to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined this Agreement, the Registration Statement each Preliminary Statement, the Disclosure Package, the Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth material adverse change in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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) amendment or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(if) FINRA The Company shall not have raised any objection with respect requested and caused Ernst & Young LLP to have furnished to the fairness or reasonableness Representatives, at the Execution Time and on the Closing Date, letters, dated respectively as of the underwriting or other arrangements Execution Time and as of the transactions contemplated herebyClosing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the SEC thereunder and that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended September 30, 2018 and as of September 30, 2018 in accordance with Statement on Auditing Standards No. 100.
(jg) 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 Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(lh) At least one (1) Business Day or prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateExecution Time, the Company shall have furnished to the Representatives a letter in the form of Exhibit A hereto from each officer and director of the Company and holders of substantially all of the Company’s equity securities addressed to the Representatives.
(i) At the Execution Time and on the Closing Date, the Company shall have furnished to the Representatives a certificate, dated the respective dates of delivery thereof and addressed to the Underwriters, of its principal financial officer with respect to certain financial data contained in the Disclosure Package and the Prospectus, providing “management comfort” with respect to such further information, certificates in form and documents as substance satisfactory to the Representatives may reasonably requestRepresentatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone telephone, facsimile or facsimile electronic mail confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxXxxxx Xxxxx, Xxx XxxxMenlo Park, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinCalifornia 94025, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Harpoon Therapeutics, 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 Issuers 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 Partnership made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused Ledgewood PCXxxxxxx Xxxxx LLP, counsel for the CompanyPartnership, to have furnished to the Representatives its opinions and negative assurance letter opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesof Exhibit A hereto.
(c) The Company Partnership shall have requested and caused Xxxxxx and XxxxxxGableGotwals, Cayman Islands counsel for the CompanyPartnership, to have furnished to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesof Exhibit B hereto.
(d) The Representatives shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company Partnership shall have furnished to the Representatives a certificate of the CompanyPartnership, signed by the Chief Executive Officer or Chief Financial Officer the President and the principal financial or accounting officer of the Companygeneral partner of the Partnership, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has carefully examined have reviewed the Registration Statement each Preliminary Statement, the Final Prospectus, the Prospectus Disclosure Package and any amendment supplements or supplement thereto, as well as each road show used in connection with the Offering, amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company Issuers in Section 1 of this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the CompanyPartnership’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)Final Prospectus, 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)Final Prospectus.
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company Partnership shall have requested and caused Withum PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Applicable Time and at the Closing Date, and any settlement date, “comfort letters” (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Applicable Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the RepresentativesRepresentatives and PricewaterhouseCoopers LLP, 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, that in their opinion the audited certain unaudited financial statements and financial statement schedules included information contained in the Registration Statement, the Statutory Preliminary Prospectus used most recently prior to the Applicable Time and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Final Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) 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 Final Prospectus (exclusive of any supplement amendment thereto), there shall not have been (i) any adverse change or decrease specified in the letters referred to in paragraph (g(f) of this Section Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise)business, properties, earnings, business results of operations or properties financial condition of the CompanyPartnership 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 Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) ), the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the any series of Securities as contemplated by the Registration Statement Statement, the Disclosure Package and the Final Prospectus.
(exclusive h) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any amendment thereofof the Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g), the Statutory Prospectus and the Prospectus (exclusive ) or any notice given of any supplement thereto)intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company Partnership shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Shearman & Xxxxxxxx Sterling, LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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, Time and the Closing Date and any settlement date pursuant to Section 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 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 Ledgewood PCWachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, to have furnished to the Representatives Underwriters its opinions opinion and negative assurance letter letters, dated the Closing Date and any settlement date addressed to the Underwriters, substantially in the form attached hereto as Exhibit B.
(c) The General Counsel of the Company, shall have furnished to the Underwriters her opinion dated the Closing Date and addressed to the Representatives Underwriters, substantially in the form and substance acceptable to the Representatives.attached hereto as Exhibit C.
(cd) The Company shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands Halter & Xxxxxxxx LLP, Ohio counsel for the Company, to have furnished to the Representatives Underwriters its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Underwriters, substantially in the form attached hereto as Exhibit D.
(e) The Selling Stockholder shall have requested and substance acceptable caused Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, to have furnished to the Representatives.Underwriters its opinion dated the Closing Date, addressed to the Underwriters and substantially in the form attached hereto as Exhibit E.
(df) The Representatives Underwriters shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesUnderwriters, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriters may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(eg) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or Chief Financial Officer the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(fh) The Company Selling Stockholder shall have furnished to the Representatives Underwriters a certificate certificate, signed by the Secretary an authorized representative of the Company, Selling Stockholder reasonably acceptable to counsel to the Underwriters dated the Closing Date and any settlement dateDate, certifying (i) to the effect that the Charter is true representations and complete, has not been modified and is warranties of the Selling Stockholder in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are true and correct in full force all material respects on and effect and have not been modified, (iii) copies as of all written correspondence between the Company or its counsel and the Commission, and (iv) as Closing Date to the incumbency of same effect as if made on the officers of the Company. The documents referred to in such certificate shall be attached to such certificateClosing Date.
(gi) The Company shall have requested and caused Withum each of Ernst & Young LLP and KPMG LLP to have furnished to the Representatives, Underwriters at the Execution Time and and, in the case of Ernst & Young LLP, at the Closing Date, and any settlement date, lettersletter(s), dated respectively as of the Execution Time and and, if applicable, as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterUnderwriters.
(hj) Subsequent 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 (g(i) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the management, condition (financial or otherwise), earnings, business or properties of the CompanyCompany or 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesUnderwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(ik) 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 or other arrangements its subsidiaries’ 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 transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreementpossible change.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from Company and the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company Selling Stockholder shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request. .
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriters.
(n) The Underwriters shall have received, at the Execution Time and on the Closing Date, a certificate, dated respectively as of the Execution Time and the Closing Date, and signed by the Chief Financial Officer of the Company substantially in the form attached hereto as Exhibit F. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 shall have requested and caused Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxxx Xxxxxxx LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, 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 reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Executive Chairman or the Chief Executive Officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 amendment or 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 amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives.
(g) The Securities shall have been listed and admitted and authorized for trading on Nasdaq, confirming that they are a registered public accounting firm that is independent with respect and satisfactory evidence of such actions shall have been provided to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterRepresentatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness At or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateExecution Time, the Company shall have furnished to the Representatives such further information, certificates a letter in the form of Exhibit A hereto from each officer and documents as director of the Representatives may reasonably requestCompany and all holders of the Company’s equity securities addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone telephone, facsimile or facsimile electronic mail confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxXxxxx Xxxxx, Xxx XxxxMenlo Park, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinCalifornia 94025, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Mirum 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 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 Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433 under the Securities Act; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Ledgewood PCXxxxxxxxx Xxxxxxx, P.A., counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in a form and substance reasonably 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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives[Reserved].
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions such opinion and negative assurance letter, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any 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 Final Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, signed by the Chief Financial Officer or Chief Accounting Officer, dated as of the date hereof and as of the Closing Date Date, with respect to certain financial information contained in the Disclosure Package and any settlement datethe Final Prospectus, certifying (i) that the Charter is true respectively, in form and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating substance reasonably satisfactory 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 certificateRepresentatives.
(g) The Company shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersletters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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[Reserved].
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company and Mariposa Acquisition IV, LLC addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any the applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 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 Ledgewood PCXxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, each dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form previously agreed to by, and substance acceptable to reasonably satisfactory to, the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands Xxxxxxx, Xxxxxxxxx & Xxx, P.L.L.C., intellectual property counsel for the Company, to have furnished to the Representatives its such opinion or opinions dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form previously agreed to by, and substance acceptable to reasonably satisfactory to, the Representatives.
(d) The Company shall have requested and caused NautaDutilh N.V., Dutch counsel for the Company, to have furnished to the Representatives such opinion or opinions dated the Closing Date and addressed to the Representatives, in the form previously agreed to by, and reasonably satisfactory to, the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions such opinion and negative assurance letter, each dated the Closing Date and any settlement date and addressed to the Representatives, in the form previously agreed to by, and reasonably satisfactory to, the Representatives, 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.
(ef) The Representatives shall have received from Van Doorne N.V., Dutch counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer or Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each the signer of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse EffectEffect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(gh) The Company shall have requested and caused Withum KPMG Accountants N.V. to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives.
(i) The Company shall have furnished to the Representatives a certificate, confirming that they are a registered public accounting firm that is independent dated the respective dates of delivery addressed to the Representatives, of its Principal Accounting Officer 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, that in their opinion the audited certain financial statements and financial statement schedules included data contained in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration StatementDisclosure Package, the Statutory Prospectus Prospectus, providing “management comfort” with respect to such information, in form and the Prospectus. References substance reasonably satisfactory to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterRepresentatives.
(hj) Subsequent 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 letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(l) The Securities shall be listed and authorized for trading on The Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) At the Execution Time, the Company shall have furnished to the Representatives a signed lock-up agreement substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each director and member of senior management of the Company and each other person listed on Schedule IV hereto. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx00 Xxxxxx Xxxxx, Xxx XxxxNew York, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, XxNew York 10001., unless otherwise indicated herein, on the Closing Date and any applicable settlement date.
Appears in 1 contract
Samples: Underwriting Agreement (Merus N.V.)
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 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) 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 Ledgewood PCXxxxxx & Xxxxxx, LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter Representative their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representative, in form and substance acceptable reasonably satisfactory to the RepresentativesRepresentative.
(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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives Representative shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the 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.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any or settlement date, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such the Closing Date or settlement date with the same effect as if made on such the Closing Date or 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 such the Closing Date or settlement 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 amendment or 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 amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(ge) The Company shall have requested and caused Withum BDO to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, and any Date or settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any Date or settlement date, in form and substance satisfactory to the RepresentativesRepresentative.
(f) The Company shall have requested and caused Xxxxx Xxxxx to have furnished to the Representative, confirming that they are a registered public accounting at the Execution Time and the Closing Date, letters dated respectively as of the Execution Time and Closing Date or settlement date, in form and substance reasonably satisfactory to the Representative and stating the conclusions and findings of such firm that is independent with respect to the Company within the meaning of the Act reserve and the Exchange Act other operational information and the applicable rules and regulations adopted by the Commission thereunder, that other matters as is customary to underwriters in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus comply as to form in all material respects connection with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterregistered public offerings.
(hg) Subsequent 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(i) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Capital Market, and satisfactory evidence of such actions shall have been provided to the Representative.
(j) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and major stockholder listed on Schedule IV addressed to the Representative.
(k) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx 00000Xxxxxxx, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, Xxxxx 00000 on the Closing Date and any applicable or settlement 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 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 Ledgewood PCFenwick & West LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date addressed to the Representatives, in the form agreed by such counsel and the Representatives. The Company shall have requested and caused Xxxxxxxxx Ring, intellectual property counsel for the Company, to have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Representatives Representatives, in the form agreed by such counsel and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxKing & Spalding LLP, Cayman Islands regulatory counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form agreed by such counsel and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its such opinion or opinions and negative assurance letter, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or and the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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)) and prior to the issuance of the Underwritten Securities, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time and prior to the issuance of the Underwritten Securities, 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.
(j) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the stockholders listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxx0xx Xxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinXxxxxxxxxx 00000, on the Closing Date and any applicable settlement dateDate.
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 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 be in effect, and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Ledgewood PCDechert LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form agreed by such counsel and substance acceptable to the RepresentativesUnderwriters.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxxxx Xxxx, Cayman Islands LLC, intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date addressed to the Representatives, in the form agreed by such counsel and the Underwriters.
(d) The Company shall have requested and caused Xxxxx, Xxxxxx & XxXxxxxx, P.C., regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives Representatives, in the form agreed by such counsel and substance acceptable to the RepresentativesUnderwriters.
(de) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer President and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has carefully examined have reviewed 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued shall be in effect, and no proceedings 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP and EisnerAmper LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(g) of this Section Section 6 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 CompanyCompany and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company shall have furnished to the Representatives such further customary information, certificates and documents as the Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of 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 Securities shall have been listed subject to notice of issuance and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and the stockholders of the Company listed on Schedule IV hereto addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxx0xx Xxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinXX 00000, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Onconova Therapeutics, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Offered ADSs and the Option SecuritiesADSs, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein in this Agreement as of the Execution Time, the Closing Date and any settlement date pursuant to Section 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 under this Agreement 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) 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 the ADS Registration Statement or any notice objecting to its their 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 Ledgewood PCLoeb & Loeb LLP, counsel for the Company, to have furnished to the Representatives its opinions an opinion and a negative assurance letter letter, each dated as of the Closing Date and any settlement date and addressed to the Representatives and the Depositary, in form and substance acceptable reasonably satisfactory to the RepresentativesUnderwriters.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxGxxxxxxxxxx e Associati, Cayman Islands Studio Legale, Italian counsel for the Company, to have furnished to the Representatives its opinions an opinion, dated as of the Closing Date and any settlement date and addressed to the Representatives and the Depositary, in form and substance acceptable reasonably satisfactory to the RepresentativesUnderwriters.
(d) The Company shall have requested and caused Studio Sxxxx and Dr. Nxxxxxx, Italian tax counsel for the Company, to have furnished to the Representatives an opinion, dated as of the Closing Date and addressed to the Representatives and the Depositary, in form and substance reasonably satisfactory to the Underwriters.
(e) The Company shall have requested and caused D. Xxxxx, intellectual property counsel for the Company, to have furnished to the Representatives an opinion, dated as of the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Underwriters.
(f) The Depositary shall have requested and caused Exxxx Xxxxxx & Mxxxxx, LLC, counsel for the Depositary, to have furnished to the Representatives their opinion dated as of the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Underwriters.
(g) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Gxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ADS Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(eh) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the Acting Chief Financial Officer of the Company, dated as of the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the ADS Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the Offeringoffering of the Securities, and this the Underwriting Agreement and that:
(i) the representations and warranties of the Company in this the Underwriting Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement or of any notice objecting to its their 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 amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth material adverse change in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have requested and caused Mxxxx Xxxxxxx XxXxxx P.C. to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, (i) confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the SEC thereunder and (ii) containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date, shall use a “cut-off” date no more than three Business Days prior to such Closing Date.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of supplement thereto), there shall not have been any Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ik) FINRA shall not have raised any objection with respect Prior to the fairness or reasonableness Closing Date, a minimum of 1,000,000 Ordinary Shares sold by the underwriting or other arrangements of Company in 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 Reserved Offering shall have been provided purchased and paid for by existing shareholders of the Company, pursuant to subscription letters in the form filed as an exhibit to the Representatives.
(k) On the Effective DateRegistration Statement, and the Company shall have delivered furnished or caused to be furnished to the Representatives executed copies evidence of payment therefor in a minimum aggregate amount of Euro [●] in form and substance satisfactory to the Representatives. On the Closing Date the Company shall have paid to the Representatives by wire transfer payable in same-day funds to the accounts specified by the Representatives an advisory fee equal to 4.5% of the Trust Agreementgross offering price of all Ordinary Shares sold by the Company in the Reserved Offering in US Dollars (“USD”) calculated at the exchange rate of USD [●] per Euro; provided, however, that the Warrant AgreementUnderwriters agree that such advisory fee, when added to the Founder’s Purchase Agreementaggregate amount of underwriting discounts and commissions earned by the Underwriters in connection with their purchase of Underwritten ADSs pursuant to Section 2 hereof, shall not exceed 6.5% of the Registration Rights Agreement, total amount of gross proceeds from the Units Subscription Agreement, sale by the Insider Letter, Company of Underwritten ADSs and Ordinary Shares in the Millennium Purchase Agreement and Reserved Offering in the Services Agreementaggregate.
(l) At least one (1) Business Day prior The Company and the Depositary shall have executed and delivered the Deposit Agreement in form and substance satisfactory to the Closing DateRepresentatives, and the Sponsor Deposit Agreement shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Accountin full force and effect.
(m) No order preventing The Depositary shall have furnished or suspending caused to be furnished to the sale Representatives certificates satisfactory to the Representatives evidencing the deposit with it or its nominee of Ordinary Shares underlying Offered ADSs in respect of which Offered ADSs to be purchased by the Underwriters on such Closing Date are to be issued, and delivery of the Units in any jurisdiction designated by Offered ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatenedreasonably request.
(n) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(o) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Capital Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(p) At the Execution Time, the Company shall have furnished to the Representatives a letter, substantially in the form of Exhibit A hereto from each executive officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Gxxxxxx Procter LLP, counsel for the Underwriters, at 000 Xxxxxxxxx 600 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 Ledgewood PCCxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, each dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxCxxxxx LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their intellectual property opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Company shall have requested and caused Gxxxxxxxx Rxxx Sxxxx & Dxxxx LLP, New Jersey counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Gxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company Representatives shall have requested and caused Withum to have furnished to received from KPMG LLP, independent registered public accounting firm for the RepresentativesCompany, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the Company within the meaning of the Act audited and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited unaudited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus 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 CommissionDisclosure Package, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statementeach free writing prospectus, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterif any.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (g(g) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of 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.
(k) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and specified stockholders of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Gxxxxxx Procter LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Gxxxxxx Procter LLP, 600 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 ProspectusFinal Prospectus Supplement, 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 shall have requested and caused Ledgewood PCXxxxx X. Xxxx, counsel for Senior Vice President and General Counsel of the Company, to have furnished to the Representatives its opinions and negative assurance letter an opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxx Xxxxxxxx, Ph.D., Vice President, Intellectual Property, of the Company, to have furnished to the Representatives an opinion with respect to intellectual property matters, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives.
(d) The Company shall have requested and caused Xxxxxx and Xxxxxx& Xxxxxx LLP, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(de) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its such opinion or opinions and negative assurance letter, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Pricing Disclosure Package, the Final Prospectus Supplement (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.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Chief Financial Officer other principal executive officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Pricing Disclosure Package, the Final Prospectus Supplement and any amendment amendments or supplement supplements thereto, as well as each electronic road show used in connection with the Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Pricing Disclosure Package and the Final Prospectus Supplement (exclusive of any amendment or supplement thereto), there has been no Material Adverse EffectChange 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 Pricing Disclosure Package and the Final Prospectus Supplement (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning containing statements and information of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules type ordinarily included in the Registration Statement, the Statutory Prospectus and the Prospectus comply as accountants “comfort letters” 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterunderwriters.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus Supplement (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(e) of this Section Section 6 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 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 Pricing Disclosure Package and the Final Prospectus Supplement (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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 Final Prospectus Supplement (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of 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.
(k) The Securities shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a lock-up letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company and certain stockholders of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx electronically to Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Lexicon 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 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 Ledgewood PCXxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, counsel for the Company, to have furnished to the Representatives its opinions an opinion and negative assurance letter letter, in each case, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx Xxxxxxx LLC, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Proskauer Rose LLP, counsel for the Underwriters, its opinions and negative assurance lettertheir opinion, dated the Closing Date and any settlement date addressed to the Representatives, in form and addressed substance reasonably satisfactory to the Representatives, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Chief Financial Officer chief executive officer and the chief financial officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Change” shall be true and correct in all respects) on and as of such date the Closing Date with the same effect as if made on at and as of such date Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such dateClosing Date;
(ii) no stop order or other order suspending the effectiveness of the Registration Statement or any notice objecting to its part thereof or any amendment thereof or the qualification of the Securities for offering or sale nor suspending or preventing the use of the Disclosure Package, the Final 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 knowledge, threatenedthreatened by the Commission or any state or regulatory body; 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 effect on the condition (financial or otherwise), results of operations, business 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 Final Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date“comfort letters”, letters(which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) The Securities shall have been approved for listing on the Nasdaq GM, subject to official notice of issuance.
(j) The Company shall have furnished to the Representatives a back-up certificate of the Company, signed by the chief financial officer of the, at the Execution Time and at the Closing Date, providing back-up support as specified therein, in form and substance reasonably satisfactory to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Proskauer Rose LLP, counsel for the Underwriters, at 000 Xxxxxxxxx 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinor remotely via the exchange of electronic documents and signatures, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Vanda 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 Settlement Date pursuant to Section 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) 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 Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxFish & Xxxxxxxxxx P.C., Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairperson of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 amendment or 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 amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by an “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.
(j) The Securities shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At or prior to the Execution Time, the Company shall have furnished to the Representatives a letter in the form of Exhibit A hereto from each officer and director of the Company and all holders of the Company’s equity securities addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone telephone, facsimile or facsimile electronic mail confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx00000 Xxxx Xxxxx Xxxxx, Xxx XxxxXxxxx, Xxx Xxxx Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Longboard 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 TimeApplicable Time of Sale, the Execution 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 Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d), 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 by the Commission 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 Ledgewood PCXxXxxxxx Xxxxxxx & Xxxx LLP, special counsel for the Company, to shall have furnished to the Representatives its opinions opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives in a form and substance acceptable to the Representativesmutually agreed upon.
(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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives[Reserved].
(d) The Representatives shall have received from Xxxxx Xxxx Winston & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the 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. In rendering such opinion, Winston & Xxxxxx LLP may rely, as to matters governed by the laws of the State of Maryland, upon the opinion of special counsel for the Company referred to in Section 6(b).
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Senior Vice President, Chief Financial Officer and Treasurer or any Assistant Treasurer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each the signer of such certificate has carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice by the Commission objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on 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 Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at At the Execution Time and at the Closing Date, the Company shall have requested and any settlement date, caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(f) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningscondition, 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 Disclosure Package or the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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).
(ih) FINRA shall not have raised any objection with respect During the period from the Execution Time to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to including the Closing Date, there shall not have occurred a downgrading in the Sponsor rating assigned to the Securities or any of the Company’s debt securities or commercial paper by any “nationally recognized statistical rating agency,” as that term is defined by the Commission in Section 3(a)(62) of the Exchange Act, and no such securities rating agency shall have caused an agreed amount of proceeds from the sale publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Private Placement Units to be deposited into Securities or any of the Trust AccountCompany’s other debt securities.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(ni) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall will be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the UnderwritersCompany, at XxXxxxxx Xxxxxxx & Xxxx LLP, 000 Xxxxxxxxx Xxxx Xxxxx Xxxxxx, Xxx XxxxSuite 2600, Xxx Xxxx 00000Baltimore, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinMD 21202, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Baltimore Gas & Electric 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 Section 3 hereof, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company or the Guarantors pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company and the Guarantors shall have requested and caused Ledgewood PCXxxxxx & Xxxxxxx LLP, counsel for the Company and the Guarantors, to have furnished to the Representatives their opinion and negative assurance letters, each dated the Closing Date, and addressed to the Representatives, to the effect set forth in Annex A-1 and Annex A-2, respectively.
(c) The Company and the Guarantors shall have requested and caused the Executive Vice President, General Counsel & Corporate Secretary of the Company and the Guarantors, to have furnished to the Representatives her opinion, dated the Closing Date, and addressed to the Representatives, to the effect set forth in Annex B.
(d) The Company and the Guarantors shall have requested and caused Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date Date, and addressed to the Representatives in form and substance acceptable Representatives, to the Representatives.effect set forth in Annex C.
(ce) The Company and the Guarantors shall have requested and caused Xxxxxx and XxxxxxXxxxxxxx, Cayman Islands special Ireland counsel for the CompanyParent Guarantor, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date Date, and addressed to the Representatives, to the effect set forth in Annex D.
(f) The Company and the Guarantors shall have requested and caused PwC Switzerland, special advisor for the Parent Guarantor to have furnished to the Representatives in form their opinion, dated the Closing Date, and substance acceptable addressed to the Representatives., to the effect set forth in Annex E.
(dg) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx LLPXxxxxx L.L.P., counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(eh) The Representatives shall have received from Xxxxxxx (Bermuda) Limited, special Bermuda counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) The Representatives shall have received from A&L Goodbody, special Ireland counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(j) The Company and the Guarantors shall have furnished to the Representatives a certificate of the CompanyCompany and the Guarantors, signed by the Chief Executive Officer or Vice President and Chief Financial Officer of the CompanyCompany and by the Chairman of the Board or the President and the principal financial or accounting officer of the Guarantors, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Guarantors in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and that the Company and each Guarantor has materially complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledgeknowledge of the Company or the Guarantors, 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 effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Guarantors 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 Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fk) The Company shall have furnished to Immediately following the Execution Time, the Representatives shall receive from KPMG LLP a certificate signed by the Secretary of the Companyletter, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as date of the Closing Date, and any settlement datethis Agreement, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and certain financial statement schedules included information relating to the Parent Guarantor and its subsidiaries contained in the Registration StatementStatement and the Preliminary Prospectus.
(l) On the Closing Date, the Statutory Prospectus and the Prospectus comply Representatives shall have received from KPMG LLP a letter, dated as to form in all material respects with the applicable accounting requirements of the Act and Closing Date, to the related rules and regulations adopted by effect that they reaffirm the Commissionstatements made in the letter furnished pursuant to subsection (j) of this Section, and reporting on except that the other cut-off date for certain procedures performed by them in respect shall be a date not more than two business days prior to the Closing Date, and providing information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Registration Statement, the Statutory Prospectus and the Final Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hm) The Company shall have received and provided to the Representatives an assurance from the Minister of Finance under the Exempted Undertakings Tax Protection Act, 1966 that, in the event of there being enacted in Bermuda any legislation imposing tax computed on profits or income or computed on any capital asset, gain or appreciation, or any tax in the nature of estate duty or inheritance tax, then the imposition of any such tax shall not until 31 March 2035 be applicable to the Company or any of its operations or its shares, debentures or other obligations, except insofar as such tax applies to persons ordinarily resident in Bermuda or to tax payable in accordance with the provisions of the Land Tax Xxx 0000 or otherwise payable in relation to any land leased to the Company.
(n) Subsequent 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 (g(j) of this Section Section 6 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, the Guarantors 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(io) FINRA shall not have raised any objection with respect For the purpose of effecting delivery of the Securities in book-entry form, the Company agrees to issue, in the name of Cede & Co., such Securities being issued to the fairness or reasonableness Underwriters and to instruct Cede & Co. to deliver the book-entry interest in such Securities to broker accounts as directed by the Representatives on behalf of the underwriting or other arrangements of the transactions contemplated herebyUnderwriters.
(jp) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from Company and the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company Guarantors shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company and the Guarantors in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, special counsel for to the UnderwritersCompany and the Guarantors, at 000 Xxxxxxxxx Xxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx Xxxxxxx, Xxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Weatherford International PLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers 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 Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers of its their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have has been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Issuers pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused Ledgewood PCXxxxx Day, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesattached as Exhibit A hereto.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx X’Xxxxx, Cayman Islands general counsel for the Company, to have furnished to the Representatives its opinions his opinion, dated the Closing Date and any settlement date addressed to the Representatives, in substantially the form attached as Exhibit B hereto.
(d) The Company shall have requested and caused Gilbride, Tusa, Last & Xxxxxxxx LLC, special local counsel for Omnicom Capital Inc., to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesattached as Exhibit C hereto.
(de) The Representatives shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the CompanyIssuers, signed by an Executive Vice President and the Chief Executive Officer principal financial or Chief Financial Officer accounting officer of each of the CompanyIssuers, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Final Prospectus, the Prospectus Disclosure Package and any amendment supplements or supplement amendments thereto, as well as each road show electronic roadshow used in connection with to offer the Offering, securities identified on Schedule V and this Agreement and that:
(i) the representations and warranties of the Company Issuers in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has Issuers have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 any of the Company’s Issuers’ knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, that thereunder and containing statements and information of the type customarily included in their opinion accountants’ “comfort letters” to underwriters with respect to 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 comply as to form in all material respects with Final Prospectus; provided that the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting letter delivered on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References Closing Date shall use a “cut-off” date no more than three business days prior to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterClosing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(g) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(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 listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and and, subject to Section 11 hereof, all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 Ledgewood PCFenwick & West LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form agreed by such counsel and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx Seed IP Law Group PLLC and XxxxxxXxxxxxxxx Ring, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinions, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form the forms agreed by such counsel and substance acceptable to the Representatives.
(d) The Company shall have requested and caused King & Spalding LLP, regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form agreed by such counsel and the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or and the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any amendment or supplement thereto)) and prior to the issuance of the Underwritten Securities, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) Subsequent to the Execution Time and prior to the issuance of the Underwritten Securities, 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.
(k) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxx0xx Xxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinXxxxxxxxxx 00000, on the Closing Date and any applicable settlement dateDate.
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 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 Ledgewood PCCxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, each dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxCxxxxx LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their intellectual property opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Company shall have requested and caused Gxxxxxxxx Rxxx Sxxxx & Dxxxx LLP, New Jersey counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Gxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company Representatives shall have requested and caused Withum to have furnished to received from KPMG LLP, independent registered public accounting firm for the RepresentativesCompany, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the Company within the meaning of the Act audited and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited unaudited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus 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 CommissionDisclosure Package, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statementeach free writing prospectus, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterif any.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the 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 (g(g) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of 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.
(k) The Securities , shares and warrants shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and specified stockholders of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Gxxxxxx Procter LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Gxxxxxx Procter LLP, 600 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 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 Ledgewood PC, counsel for the Company, Company to have furnished to the Representatives its opinions and negative assurance letter the opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, with respect to the Representativesissuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxxx Xxxxx & Xxxxxxxx LLP, Cayman Islands special tax counsel for to the Company, to have furnished to the Representatives its opinions an opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, with respect to certain United States federal income tax matters related to the RepresentativesSecurities and other related matters as the Representatives may reasonably require.
(d) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Chairman, any Vice Chairman, the President, any Vice President, the Chief Financial Officer Officer, the Chief Accounting Officer, the General Counsel, the Controller or any Deputy Controller and by the Treasurer, the Deputy Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Final Prospectus, the Prospectus Disclosure Package and any amendment supplements or supplement amendments thereto, as well as each road show electronic roadshow used in connection with to offer the OfferingSecurities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersa customary “comfort letter” (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date, that is satisfactory in content and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentatives after consultation with the Company, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)) and any Issuer Free Writing Prospectus.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this AgreementAgreement with respect to an offering of Securities, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled with respect to such offering at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Citigroup Global Markets 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 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) Filing of Prospectus; No Stop Order. 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 Ledgewood PCXxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter Representative their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representative, in a form and substance acceptable to the RepresentativesUnderwriters.
(c) The Company shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands counsel Opinion of Counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) Representative. The Representatives Representative shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus and 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or Chief Financial Officer of the Company, dated the Closing Date and any settlement date, to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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 Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation 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 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 Ledgewood PCXxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions Representative their opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representative, substantially in form the forms of Exhibits B-1 and substance acceptable to the RepresentativesB-2, respectively.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxxx & Xxxxxxxx LLP, Cayman Islands special intellectual property counsel for the Company, to have furnished to the Representatives its opinions Representative their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representative, substantially in the form and substance acceptable to the Representatives.of Exhibit C.
(d) The Representatives Representative shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 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 Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Xxxxxxxxx & Xxxxxxxxx, a member of PricewaterhouseCoopers International Limited, to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date, and any settlement dateletters, 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 RepresentativesRepresentative, 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, that and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included incorporated by reference in the Registration Statement, the Statutory Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, and reporting on financial or statistical nature (which is limited to accounting, financial or statistical information derived from the other procedures performed by them in respect general accounting records of the financial information Company and its subsidiaries) set forth in the Registration Statement, the Statutory Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions “The Offering”, “Risk Factors”, “Dilution” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, the information incorporated by reference in Items 1, 2, 6, 7 and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (g(f) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(f) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or 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).
(ih) 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 listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(ni) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(j) The Securities shall have been listed and admitted and authorized for trading on the NYSE Amex, and satisfactory evidence of such actions shall have been provided to the Representative.
(k) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each officer and director of the Company addressed to the Representative. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx XxxxXxxxx, Xxx Xxxx XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Protalix BioTherapeutics, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the 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 Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder to be complied with prior to the Execution Time, Closing Date, or any settlement date pursuant to Section 3 hereof, as the case may be, 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 Ledgewood PCFenwick & West LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representatives.attached hereto as Exhibit C.
(c) The Company Selling Stockholders shall have requested and caused Xxxxxx and XxxxxxLLP, Cayman Islands special counsel for the CompanySelling Stockholders, to have furnished to the Representatives its opinions their opinion dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Exhibit D and, in respect of any settlement date foreign Selling Stockholders, shall have requested and caused counsel satisfactory to the Representatives to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or and the Chief Financial Officer of the Company, in each such person’s capacity as an officer of the Company and not in his individual capacity, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company Each Selling Stockholder shall have furnished to the Representatives a certificate signed certificate, executed by the Secretary one of the CompanyAttorneys-in-Fact on behalf of such Selling Stockholder, dated to the effect that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and same effect and have not been modified, (iii) copies of all written 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.
(g) The Company shall have requested and caused Withum PricewaterhouseCoopers LLP to have furnished to the Representatives, Representatives at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(g) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(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 MarketStock Exchange, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(j) On or prior to the Execution Time, the Stock Exchange shall have approved the Underwriters’ participation in the distribution of the Securities to be sold by the Selling Stockholders in accordance with Rule 393 of the Stock Exchange.
(k) On At the Effective DateExecution Time, the Company shall have delivered furnished to Citigroup Global Markets Inc. and Deutsche Bank Securities Inc. a letter substantially in the Representatives executed copies form of Exhibit A hereto from each officer, director, stockholder, optionholder and warrantholder (including without limitation, each Selling Stockholder) of the Trust AgreementCompany addressed to Citigroup Global Markets Inc. and Deutsche Bank Securities Inc. For the avoidance of doubt, for purposes of each such letter, the Warrant Agreementterms “Representative” and “Representatives,” as used therein, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement shall include only Citigroup Global Markets Inc. and the Services Agreement.Deutsche Bank Securities Inc.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from Company and the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx1881 Page Mill Road, Xxx XxxxPalo, Xxx Xxxx 00000Alto, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinCalifornia, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (YuMe 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 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 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 Ledgewood PCXxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, each dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form previously agreed to by, and substance acceptable to reasonably satisfactory to, the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxSterne, Cayman Islands Kessler, Xxxxxxxxx & Fox, P.L.L.C., intellectual property counsel for the Company, to have furnished to the Representatives its such opinion or opinions dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form previously agreed to by, and substance acceptable to reasonably satisfactory to, the Representatives.
(d) The Company shall have requested and caused NautaDutilh N.V., Dutch counsel for the Company, to have furnished to the Representatives such opinion or opinions dated the Closing Date and addressed to the Representatives, in the form previously agreed to by, and reasonably satisfactory to, the Representatives.
(e) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions such opinion and negative assurance letter, each dated the Closing Date and any settlement date and addressed to the Representatives, in the form previously agreed to by, and reasonably satisfactory to, the Representatives, 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.
(ef) The Representatives shall have received from Van Doorne N.V., Dutch counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President, Chief Executive Officer or Chief and Principal Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each the signer of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse EffectEffect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(gh) The Company shall have requested and caused Withum KPMG Accountants N.V. to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hi) Subsequent 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 letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) The Securities shall be listed and authorized for trading on The Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the Representatives a signed lock-up agreement substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each director and member of senior management of the Company and each other person listed on Schedule IV hereto. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx00 Xxxxxx Xxxxx, Xxx XxxxNew York, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, XxNew York 10001., unless otherwise indicated herein, on the Closing Date and any applicable settlement date.
Appears in 1 contract
Samples: Underwriting Agreement (Merus N.V.)
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 Selling Stockholders, 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 Section 4 hereof, to the accuracy of the statements of the Company, the Selling Stockholders, the Adviser and the Administrator made in any certificates pursuant to the provisions hereof, to the performance by the Company Company, the Selling Stockholders, 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 Company, the Adviser and the Administrator shall have requested and caused Ledgewood PCSxxxxxxxxx Xxxxxx & Bxxxxxx LLP, counsel for the Company, the Adviser and the Administrator to have furnished to the Representatives its opinions and negative assurance letter opinion, dated the Closing Date and any settlement date and addressed to the Representatives in substantially the form and substance acceptable to the Representatives.attached hereto as Exhibit A.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxVxxxxxx LLP, Cayman Islands special Maryland counsel for to the Company, to have furnished to the Representatives its opinions opinion as to certain matters pertaining to Maryland law, dated the Closing Date and any settlement date and addressed to the Representatives in substantially the form attached hereto as Exhibit B.
(d) Each of the Selling Stockholders shall have requested and substance acceptable caused its respective counsel to have furnished to the Representatives its opinion with respect to each of the Selling Stockholders for whom they are acting as counsel, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit C, with such revisions as may be approved by counsel for the Underwriters.
(de) The Representatives shall have received from Xxxxx Xxxx Sxxxxxx Xxxxxxx & Xxxxxxxx Bxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Company Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the 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.
(ef) The Company Each of the Company, the Adviser and the Administrator shall have furnished to the Representatives a certificate certificate, signed by the principal executive officer and the principal financial or accounting officer of each of the Company, signed by the Chief Executive Officer or Chief Financial Officer of Adviser and the CompanyAdministrator, as the case may be, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, the Prospectus and any amendment amendments or supplement thereto, as well as each road show used in connection with the Offering, 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 such date the Closing Date with the same effect as if made on such date 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 such datethe Closing Date; and the statements made in the Basic Prospectus, each 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, each Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(fg) The Company Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed by the Secretary such Selling Stockholder, or appropriate representative of such Selling Stockholder, or by a power of attorney on behalf of the CompanySelling Stockholder, dated the Closing Date and any settlement dateDate, certifying (i) reasonably satisfactory to the Representatives that the Charter is true representations and complete, has not been modified and is warranties of such Selling Stockholder in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force true and correct on and as of the Closing Date with the same effect and have not been modified, (iii) copies of all written correspondence between as if made on the Company or its counsel and the CommissionClosing Date, and (iv) that the Selling Stockholder has complied 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 as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateother matters as you may reasonably request.
(gh) The Company shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at Time, the Closing Date, Date and any settlement date, date letters, dated respectively as of the Execution Time and as of Time, the Closing Date, Date and any settlement date, in form and substance satisfactory to the Representatives, 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 Regulations and that it has audited the Commission thereunderconsolidated statement of assets and liabilities, that including the consolidated schedule of investments of the Company as of December 31, 2009 and 2008 and the related consolidated statement of operations, changes in their net assets and cash flows for the year ended December 31, 2009, 2008 and 2007 and performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 2010 and as at March 31, 2010 and the nine-month period ended September 30, 2010 and as at September 30, 2010, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) in its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus and reported on by 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, of the unaudited interim financial information for the three-month period ended March 31, 2010 and as at March 31, 2010 and the nine-month period ended September 30, 2010 and as at September 30, 2010; 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, 2009, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Basic Prospectus, each 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 reporting said unaudited financial statements are not in conformity with generally accepted accounting principles applied on the other procedures performed by them in respect a basis substantially consistent with that of the audited financial information statements included in the Registration Statement, the Statutory Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus; and
(2) with respect to the period subsequent to September 30, 2010, 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 September 30, 2010 unaudited statement of assets and liabilities included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, or for the period from September 30, 2010 to such specified date there were any decreases, as compared with September 30, 2010 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.
(iii) it has performed certain other specified procedures as a result of which 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 Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, including the information set forth under the captions “Fees and Expenses” and “Selected Financial and Other Data” in the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (g(h) include any supplement thereto at the date of the applicable letter.
(hi) 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 (g(h) of this Section 6 Section 9 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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, each Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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, each Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateCompany, the Company Selling Stockholders, the Adviser and the Administrator shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 Section 9 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 Section 9 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, Underwriters on the Closing Date and any applicable settlement dateDate.
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 Issuer 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 Issuer made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Issuer of its their respective obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) 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; no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and any request of the Commission for inclusion of additional information in the Registration Statement or the Final Prospectus or otherwise shall have been complied with.
(b) The Company shall have requested and caused Ledgewood PCXxxxx Xxxx & Xxxxxxxx LLP, counsel for the CompanyCompany and the Issuer, to have furnished to the Representatives its opinions their opinion and negative assurance letter 10b-5 statement, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company and the Issuer shall have requested and caused Xxxxxx and XxxxxxMourant Ozannes, Cayman Islands Jersey counsel for the Company, to have furnished furnish to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Company and the Issuer shall have requested and caused Xxxxxx Xxx, Irish counsel for the Issuer, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(e) The Company and the Issuer shall have requested and caused Xxxxxxxxx and May, English counsel for the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(f) The Representatives shall have received from Cravath, Swaine & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions opinion and negative assurance letter10b-5 statement, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require. The Company and the Company Issuer shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(eg) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or of the Company, the Chief Financial Officer of the Company or the General Counsel of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 the electronic road show used in connection with the Offeringoffering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Issuer in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and each of the Company and the Company Issuer has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 and the Issuer’s knowledge, threatened, and the Commission has not notified the Company or the Issuer of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Registration Statement, the Disclosure Package and the Final Prospectus (in each case, exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), earnings, properties or business of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Registration Statement, the Disclosure Package and the Final Prospectus (in each case, exclusive of any amendment or supplement thereto).
(fh) The Company On the date of this Agreement and on the Closing Date, the Representatives shall have furnished to the Representatives a certificate signed by the Secretary of received:
(i) From Deloitte, independent registered public accountants for the Company, letters dated the Closing Date respective dates of delivery thereof and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished addressed to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as on behalf of the Execution Time and as of the Closing Date, and any settlement dateUnderwriters, in form and substance reasonably satisfactory to the Representatives, 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 of the Act audited, unaudited and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited pro forma financial statements and certain financial statement schedules information of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus comply as Final Prospectus, and other customary matters;
(ii) From PwC, independent registered public accountants for Baxalta, letters dated the respective dates of delivery thereof and addressed to form in all material respects with the applicable accounting requirements Representatives, on behalf of the Act Underwriters, in form and substance reasonably satisfactory to the related rules Representatives, containing statements and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the audited and unaudited financial statements and certain financial information of Baxalta and their respective consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Statutory Prospectus Disclosure Package and the Final Prospectus. References , and other customary matters; and
(iii) From PwC, independent registered public accountants for Dyax, letters dated the respective dates of delivery thereof and addressed to the Prospectus in this paragraph (g) include any supplement thereto at the date Representatives, on behalf of the applicable letterUnderwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the audited financial statements and certain financial information of Dyax and their respective consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus, and other customary matters.
(hi) The Company, the Issuer and the Trustee shall have executed and delivered the Indenture, and the Underwriters shall have received an original copy thereof, duly executed by the Company, the Issuer and the Trustee.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, properties or 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 Final Prospectus (in each case, exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (in each case, exclusive of any amendment or supplement thereto).
(k) Subsequent to the execution and delivery of this Agreement there shall have not occurred any of the following: (i) FINRA trading in the Company’s common stock shall not have raised been suspended by the Commission or the London Stock Exchange, trading in the Company’s American Depositary Shares shall have been suspended by the Nasdaq Global Select Market or trading in securities generally on any objection securities exchange that has registered with respect to the fairness or reasonableness Commission under Section 6 of the underwriting or other arrangements of Exchange Act (including the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on New York Stock Exchange, the London Stock Exchange, the Nasdaq Global Select Market, the Nasdaq Global Market and the Nasdaq Capital Market, satisfactory evidence of which ) shall have been provided suspended or limited or minimum prices shall have been established on such exchanges, (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 national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities or any other calamity or crisis either within or outside the United States after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the reasonable judgment of the Representatives.
(k) On , impracticable or inadvisable to proceed with the Effective Date, the Company shall have delivered to the Representatives executed copies offering or delivery of the Trust AgreementSecurities as contemplated by any Preliminary Prospectus or the Final Prospectus (in each case, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreementexclusive of any amendment or supplement thereto).
(l) At least one Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by either of Xxxxx’x Investors Service, Inc. or S&P Global Ratings, a division of The XxXxxx-Xxxx Companies, Inc., or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(1m) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from Company and the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company Issuer shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(n) The Securities shall be eligible for clearance and settlement through DTC. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company and the Issuer in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Cravath, Swaine & Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at Worldwide Plaza, 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Shire PLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, 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, Initial Sale 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 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 Ledgewood PCreceived from Xxxxxx & Xxxxxx L.L.P., counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, to the Representatives.effect set forth in Annex I hereto;
(c) The Company Representatives shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands counsel for received from the General Counsel to the Company, to have furnished to the Representatives its opinions his opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, to the Representatives.effect set forth in Annex II hereto;
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLPXxxxx L.L.P., counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Shares, 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 reasonably require and request for the purpose of enabling them to pass upon such matters.;
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed in their representative capacities by the Chief Executive Officer or and Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer of such certificate has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of such date the Closing Date, with the same effect as if made on such date the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or stop order preventing or suspending the use of any notice objecting prospectus relating to its use the 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 Final Prospectus, as amended or supplemented prior to the Prospectus (exclusive of any supplement thereto).Execution Time, or as described in such certificate;
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at At the Execution Time and at the Closing Date, and any settlement date, letters, 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 Date, and any settlement datesuch date or dates, in form and substance reasonably satisfactory to the Representatives, 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, that 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 any Issuer Free Writing Prospectus;
(g) At the Execution Time and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration StatementClosing Date, the Statutory Prospectus Representatives shall have received from NSAI a letter, in form and the Prospectus. References substance reasonably satisfactory to the Prospectus Representatives, addressed to the Underwriters covering the matters described in this paragraph (g) include any supplement thereto at the date of the applicable letter.Annex III;
(h) The Representatives shall have received an agreement for the benefit of the Underwriters in the form set forth as Annex IV hereto, signed by Xxxxxxx X. Xxxx, Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxx, Xx., Xxxxxxx X. Xxxxxxxxx, Xx., Xxxx X. Xxxxxxxx and each director and executive officer listed in the Company’s Proxy Statement, filed with the Commission on April 17, 2014 (each a “Lock-Up Agreement”), other than Xxxxxxx X. Xxxxxx or any such director or officer who has resigned before the Execution Time, and each such Lock-Up Agreement shall be in full force and effect on the Closing Date;
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)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 (g(f) of this Section 6 Section 5 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities 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).
(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.Issuer Free Writing Prospectus;
(j) The Securities Shares shall be duly listed have been approved for listing on the New York Stock Exchange, subject only to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day at or prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.; and
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nk) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and 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 or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The 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 Section 5 shall be delivered to the offices of Xxxxxx & Xxxxxx L.L.P. at the office of Xxxxx 0000 Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx XxxxDallas, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, Texas 75201 on the Closing Date and any applicable settlement dateDate, 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 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 or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused Ledgewood PCcaused: (i) Xxxxxx & Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinions, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, substantially to the Representatives.
effect set forth in Exhibits C-1 and C-2 hereto and (cii) The Company shall have requested and caused Xxxxxx and XxxxxxX. Xxxxxxxx, Cayman Islands counsel General Counsel for the Company, to have furnished to the Representatives its opinions her opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, substantially to the Representativeseffect set forth in Exhibit D hereto. In rendering the foregoing opinions, such counsels may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(dc) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Proskauer Rose LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer or and the Senior Vice President and Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(ge) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, Representatives at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunderthereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, that 2013 and as at March 31, 2013, 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 for the year ended December 31, 2012 and as at December 31, 2012 included in the Registration Statement, the Statutory Preliminary 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 reporting ;
(ii) on the other procedures performed by them in respect 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, 2013 and as at March 31, 2013, as indicated in their report dated April 18, 2013; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the audit and compensation committees of the Company and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2012, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Statutory Preliminary Prospectus and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus;
(2) with respect to the period subsequent to March 31, 2013, there were any changes, at a specified date not more than three 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 consolidated total assets or stockholders’ equity of the Company as compared with the amounts shown on the March 31, 2013, consolidated balance sheet included in the Registration Statement, the Preliminary Prospectus, and the Prospectus, or for the period from April 1, 2013 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in consolidated revenues or in the total or per-share amounts of consolidated 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
(3) the information included in the Registration Statement, the Preliminary Prospectus and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation), in each case with respect to the periods specified in such letter, is not in conformity with the applicable disclosure requirements of Regulation S-K.
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus, and the Prospectus, including the information set forth under the captions “Summary – Summary Consolidated Financial and Other Data” and “Selected Consolidated Financial Data” in the Preliminary Prospectus and the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (g(e) include any supplement thereto at the date of the applicable letter.
(hf) The Company shall have requested and caused McGladrey LLP to have furnished to the Representatives at the Execution Time a letter, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules for the fiscal year ended December 31, 2011 included in the Registration Statement, the Preliminary Prospectus and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) nothing came to their attention which caused them to believe that the information included in the Registration Statement, the Preliminary Prospectus and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), and Item 402 (Executive Compensation), in each case with respect to the fiscal year ended December 31, 2011, is not in conformity with the applicable disclosure requirements of Regulation S-K.
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus, and the Prospectus, including the information set forth under the captions “Summary – Summary Consolidated Financial and Other Data” and “Selected Consolidated Financial Data” in the Preliminary Prospectus and the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation.
(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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ih) 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 listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(ni) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A-1 hereto from each officer and director of the Company and letters substantially in the form of either Exhibit A-1 or Exhibit A-2 hereto, as applicable, from each stockholder named on Annex B hereto, in each case addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Proskauer Rose LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Eleven Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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, the Closing Date and any settlement date Settlement Date pursuant to Section 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 Ledgewood PCNorton Xxxx Xxxxxxxxx US LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter (i) their opinion, dated the Closing Date and any settlement date addressed to the Representatives, substantially in the form attached hereto as Exhibit C, and (ii) their negative assurance letter, dated the Closing Date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory 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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer or and the Executive Vice President and Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package and the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus, 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)Prospectus.
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(ge) The Company shall have requested and caused Withum Xxxxx Xxxxxxxx LLP to have furnished to the Representatives, Representatives at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, Representatives (i) confirming that they are a independent 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, that in their opinion and (ii) stating the audited financial statements conclusions and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus comply as findings of such firm with respect 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References other matters ordinarily covered by an independent registered public accountant’s “comfort letter” to the Prospectus underwriters in this paragraph (g) include any supplement thereto at the date of the applicable letterconnection with a registered public offering.
(hf) The Underwriters shall have received on each of the dates hereof, the Closing Date and any Settlement Date, a letter dated the date hereof, the Closing Date or such Settlement Date, as applicable, in form and substance reasonably satisfactory to the Underwriters, of NSAI.
(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)Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(e) of this Section Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, prospects, 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement Statement, the Disclosure Package and the Prospectus.
(exclusive h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any amendment thereof), of the Statutory Prospectus and Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Prospectus (exclusive Exchange Act) or any notice given of any supplement thereto)intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request.
(j) The Securities shall have been listed and admitted and authorized for trading on the NYSE, subject to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each of the individuals listed on Schedule V hereto. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx Xxxxxxx, Xxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 Ledgewood PCXxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter opinion, dated the Closing Date and any settlement date and addressed to Date, substantially in the Representatives in form and substance acceptable to the Representatives.attached hereto as Exhibit B.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx Procter LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in the form and substance acceptable to the Representatives.attached hereto as Exhibit C.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or and the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included substantially in the Registration Statement, the Statutory Prospectus and the Prospectus comply form as to form set forth in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.Exhibit D.
(hg) Subsequent 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 (g(d) of this Section Section 6 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, 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit E hereto (a “Lock-Up Agreement”) from each officer and director of the Company and specified stockholders of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Catabasis 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 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 shall have requested and caused Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, each dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form the forms and substance acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxGavrilovich, Cayman Islands Xxxx & Xxxxxxx LLP, special intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in the form and substance acceptable satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer or and the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any 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 Final Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that 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 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Final Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 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.
(j) The Securities shall have been approved for trading on the Nasdaq Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx00000 Xxxx Xxxxx Xxxxx, Xxx XxxxXxxxx, Xxx Xxxx Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xxon each such date as provided in this Agreement., unless otherwise indicated herein, on the Closing Date and any applicable settlement date.
Appears in 1 contract
Samples: Underwriting Agreement (Tocagen 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 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 shall have requested and caused Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx Coie LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any 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 Final Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Xxxx Xxxxx Xxxxxx & Kasierer, a member of Ernst & Young Global, to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, lettersletters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission SEC thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(f) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 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.
(j) The Securities shall have been approved for trading on the Nasdaq Global Market, subject to notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Eloxx 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 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, Final Prospectus and the Final Canadian MJDS Supplement and any supplement thereto, thereto have been filed with the Commission or the Canadian Regulators, as the case may be, in the manner and within the time period required by Rule 424(b)) or the MJDS Rule, as the case may be; 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; any materials required to be filed by the Company pursuant to the MJDS Rule shall have been filed by the Company with the Canadian Regulators within the applicable time periods; and no stop order suspending the effectiveness of the Registration Statement or the Canadian MJDS Base Prospectus 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 Ledgewood PCXxxxx & Xxxxxxx L.L.P., U.S. counsel for the Company, and Xxxxxxx Xxxxx & Xxxxxxxxx LLP, Canadian counsel for the Company, to have furnished to the Representatives its their opinions substantially in the forms set forth in Exhibits E-1 and negative assurance letter dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxE-2 hereto, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance letterrespectively, dated the Closing Date and any settlement date and addressed to the Representatives. In the case of the opinion to be provided by Xxxxxxx Xxxxx & Xxxxxxxxx LLP, they may rely on the opinions of local counsel acceptable to the Representatives, acting reasonably, as to the qualification of the Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than the provinces in which they are qualified to practice.
(c) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, U.S. counsel for the Underwriters, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date, to the effect that each signer the signers of such certificate has 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 road show electronic roadshow that is a written communication used in connection with the Offeringoffering 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 such the Closing Date and any settlement date with the same effect as if made on such the Closing Date and any settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such the Closing Date and any settlement date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(ge) The Company shall have requested and caused Withum PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, Date and any settlement date, lettersletters (which may refer to letters previously delivered to the Representatives), dated respectively as of the Execution Time and as of the Closing Date, Date and any settlement date, in form and substance satisfactory to the Representatives, 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 respective applicable rules and regulations adopted by the Commission thereunder, that thereunder and stating to the effect that:
(i) in their its 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 Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of (a) a reading of the latest unaudited financial statements made available by the Company and its subsidiaries, (b) their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the six-month period ended December 31, 2008, and reporting on as at December 31, 2008, (c) 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 other procedures performed by them comments set forth in respect such letter, (d) a reading of the minutes of the meetings of the shareholders, the directors, the audit committee and the compensation, nomination and corporate governance committee of the Company, and (e) inquiries of certain officials of the Company who have responsibility for financial information 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 Statutory Preliminary Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act, and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus;
(2) with respect to the period subsequent to December 31, 2008, there were, at a specified date not more than five days prior to the date of the letter, any change, increase or decrease in capital stock or decrease in long-term debt of the Company and its subsidiaries as compared with the amounts shown on the December 31, 2008 consolidated balance sheet included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, 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 to be necessary by the Representatives;
(3) the information included or incorporated by reference in the Registration Statement, the Preliminary Prospectus, the Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), is not in conformity with the applicable disclosure requirements of Regulation S-K; and they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus, the Final Prospectus and in Exhibit 12.1 of the Registration Statement, including the information set forth under the captions “Prospectus Supplement Summary,” “Risk Factors,” “Recent Developments,” “Dividend History” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, the information set forth under the captions “The Company,” “Ratio of Earnings to Fixed Charges and Preferred Stock Dividends,” and “Description of Common Stock” in the Prospectus, the information the Company’s Definitive Proxy Statement, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the information in Items 1, 1A, 2, 5, 6, 7, 7A and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the information in Items 1A, 2 and 3 of the Company’s Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus and the information in Items 1.01, 8.01 and 9.01 of the information in the Company’s Current Reports on Form 8-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (g(e) include any supplement thereto at the date of the applicable letter.
(hf) Subsequent 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 (i1) any change or decrease specified in the letter or letters referred to in paragraph (g(e) of this Section Section 6 or (ii2) any changeMaterial Adverse Effect, or any development involving a prospective change, in or affecting the condition (financial or 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(1) or (ii(2) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(ng) 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 Representatives may reasonably request.
(h) The Securities shall have been approved for listing on the NASDAQ Global Select Market and, prior to the Closing Date, the Securities shall have been conditionally approved for listing, subject to the satisfaction of the customary conditions, on the Toronto Stock Exchange, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(i) At the Execution Time, the Company shall have furnished to the Representatives (1) a letter substantially in the form of Exhibit A to this Agreement from each officer and director of the Company, and (2) a letter substantially in the form of Exhibit B to this Agreement from CDA.
(j) The Company shall have requested and caused counsel qualified in the Province of British Colombia to have furnished to the Representatives its opinion, dated the Closing Date and any settlement date and addressed to the Representatives, substantially to the effect that RGLD Gold Canada, Inc. is a corporation incorporated and existing under the laws of the Province of British Columbia and has the corporate power and capacity to own, lease or operate its properties and assets, and to carry on its business as described in the Disclosure Package and the Final Prospectus. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxxx Xxxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxXxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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, Units shall be subject to the accuracy of the representations and warranties on the part of the Company Partnership Parties and Golar contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 Section 4 hereof, to the accuracy of the statements of the Partnership Parties and Golar made in any certificates pursuant to the provisions hereof, to the performance by the Company Partnership Parties and Golar of its their 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 Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused Ledgewood PCXxxxxx & Xxxxxx LLP, special Republic of Liberia and Republic of The Xxxxxxxx Islands counsel for the CompanyPartnership Entities, to have furnished to the Representatives Underwriters its opinions and negative assurance letter written opinion, dated the Closing Date and any settlement date and addressed to the Representatives you, in form and substance acceptable reasonably satisfactory to the RepresentativesUnderwriters, substantially to the effect set forth in Exhibit C-1.
(c) Golar shall have requested and caused MJM Limited, special Bermuda counsel for Golar, to have furnished to the Underwriters its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect set forth in Exhibit C-2.
(d) The Company Partnership shall have requested and caused Xxxxxx and Xxxxxx& Xxxxxx L.L.P., Cayman Islands U.S. counsel for to the CompanyPartnership Entities, to have furnished to the Representatives Underwriters its opinions written opinion, dated the Closing Date and any settlement date and addressed to the Representatives you, in form and substance acceptable reasonably satisfactory to the RepresentativesUnderwriters, substantially to the effect set forth in Exhibit C-3.
(de) The Representatives Partnership shall have requested and caused Xxxxxx Westwood & Riegels, special British Virgin Islands counsel to the Partnership Entities, to have furnished to the Underwriters its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect set forth in Exhibit C-4.
(f) The Partnership shall have requested and caused Xxxxxx Redo Xxxxxxx Advogados Associados, special Brazilian counsel to the Partnership Entities, to have furnished to the Underwriters its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect set forth in Exhibit C-5.
(g) The Partnership shall have requested and caused Xxxxxx, Xxxxxx & Xxxxxxxx (UK) LLP, special United Kingdom counsel for the Partnership Entities, to have furnished to the Underwriters its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect set forth in Exhibit C-6.
(h) The Partnership shall have requested and caused Xxxxxx, Xxxxxx & Xxxxxxxx Asia Practice LLP, special Singapore counsel to the Partnership Entities, to have furnished to the Underwriters its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect set forth in Exhibit C-7.
(i) The Partnership shall have requested and caused Hanafiah Ponggawa & Partners, special Indonesian counsel to the Partnership Entities, to have furnished to the Underwriters its written opinion, dated the Closing Date and addressed to you, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect set forth in Exhibit C-8.
(j) The Underwriters shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date Date, and addressed to the RepresentativesUnderwriters, with respect to the sale of the Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriters may reasonably require, and the Company Partnership Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ek) The Company Partnership shall have furnished to the Representatives Underwriters a certificate of the CompanyPartnership, signed on behalf of the Partnership by the Chief Principal Executive Officer or Chief and the Principal Financial Officer of the CompanyOfficer, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement each Preliminary Statement, the Disclosure Package, the Prospectus, the any Issuer Free Writing Prospectus and any amendment or supplement thereto, as well as each bona fide electronic road show used in connection with the Offeringoffering of the Units, and this Agreement and that:
(i) the representations and warranties of the Company Partnership Parties in this Agreement are true and correct on and as of such date the Closing Date, with the same effect as if made on such date the Closing Date, and each of the Company has Partnership Parties have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(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 CompanyPartnership’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).
(fl) The Company Golar shall have furnished to the Representatives Underwriters a certificate certificate, signed on behalf of Golar by its Principal Executive Officer and the Secretary of the CompanyPrincipal Financial Officer, dated the Closing Date Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any settlement dateamendment or supplement thereto, certifying (i) as well as each bona fide electronic road show used in connection with the offering of the Units, and this Agreement and that the Charter is true representations and complete, has not been modified and is warranties of Golar in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force true and correct on and as of the Closing Date, with the same effect and have not been modified, (iii) copies of all written correspondence between as if made on the Company or its counsel and the CommissionClosing Date, and (iv) as Golar has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied at or prior to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateClosing Date.
(gm) The Company Partnership Parties shall have requested and caused Withum Ernst & Young LLP to have furnished to the RepresentativesUnderwriters, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the RepresentativesUnderwriters, (i) 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 thereunder, adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 CommissionPCAOB, and reporting on the other procedures performed by them in (ii) stating their conclusions and findings with respect of to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterUnited States.
(hn) Subsequent 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 (g(i) of this Section 6 Section 7 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 CompanyPartnership Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or 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 RepresentativesUnderwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(io) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company Golar Entities shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(p) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Partnership Entities’ debt securities, if any such securities are outstanding, by any “nationally recognized statistical rating organization” (within the meaning of 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.
(q) The Partnership shall have submitted proper notifications regarding the listing of the Units to the NASDAQ Global Market.
(r) At the Execution Time, the Golar Entities shall have furnished to the Underwriters a letter substantially in the form of Exhibit A hereto from each of the persons listed on Schedule IV hereto.
(s) At the date of this Agreement and the Closing Date, the Underwriters shall have received from the Partnership a certificate substantially in the form of Exhibit D hereto and signed by the Principal Financial Officer of the Partnership.
(t) The Partnership shall have requested and caused Xxxxxxxx Xxxxxx, as Legal Advisor, to have furnished to the Underwriters a certificate, dated the Closing Date, and addressed to you, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect set forth in Exhibit E.
(u) Prior to the Closing Date, the Underwriters shall have received a properly completed and executed United States Treasury Department Form W-9 or W-8 (or other applicable form) from Golar. If any of the conditions specified in this Section 6 Section 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 Representatives Underwriters 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 any applicable settlement date by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company Partnership and Golar in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 Section 7 shall be delivered at the office offices of Xxxxxx & Xxxxxx L.L.P., 000 Xxxxx Xxxx & Xxxxxxxx LLPXxxxxx, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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) 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 Ledgewood PCLxxxxx & Wxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in form and substance acceptable to the Representatives.forms attached hereto as Exhibit A.
(c) The Chief Financial Officer of the Company shall have requested and caused Xxxxxx and Xxxxxx, Cayman Islands counsel for the Company, to have furnished delivered to the Representatives its opinions dated Representatives, on each of the date hereof and on the Closing Date and any settlement date and addressed to the Representatives Date, a certificate in a form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Cxxxxx LLP, counsel for the Underwriters, its opinions such opinion and negative assurance letter, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or and the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 amendment or supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated material adverse change in the Statutory Prospectus 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 Prospectus (exclusive ordinary course of any supplement thereto)business.
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum each of Deloitte & Touche LLP and Mxxxxx LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning containing statements and information of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules type ordinarily included in the Registration Statement, the Statutory Prospectus and the Prospectus comply as accountants “comfort letters” 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterunderwriters.
(hg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) [Reserved].
(j) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq, and satisfactory evidence of such actions shall have been provided to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Cxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx 100 Xxxxxxxxxx Xxxxxx, Xxx Xxxx0xx Xxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinXxxxxxxxxx 00000, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Opendoor Technologies 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 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 Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, each dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxCarter, Cayman Islands DeLuca, Xxxxxxx & Xxxxxxx, LLP, intellectual property counsel for the Company, to have furnished to the Representatives its opinions their intellectual property opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Company shall have furnished to such counsel such documents as they request for Securities, the purpose of enabling them to pass upon such Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer Officer, or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company Representatives shall have furnished to the Representatives a certificate signed by the Secretary of received from KPMG LLP, independent registered public accounting firm for the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance reasonably satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the Company within the meaning of the Act audited and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited unaudited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus 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 CommissionDisclosure Package, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statementeach free writing prospectus, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterif any.
(hg) Subsequent 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 (g(f) of this Section 6 Section 6; 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, 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering Offering 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).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and certain stockholders of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, at Xxxxxxx Procter LLP, 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 Settlement Date pursuant to Section 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) 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 Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxxx Xxxxxxx LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable satisfactory to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Executive Chairman or the Chief Executive Officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 amendment or 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 amendment or supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a certificate of the Company, confirming that they are a registered public signed by its principal financial or accounting firm that officer or senior executive officer who is independent satisfactory to the Representatives, dated the Closing Date, 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, that in their opinion the audited certain financial statements and financial statement schedules included data contained in the Registration Statement, the Statutory Disclosure Package, the Prospectus and the Prospectus comply as any amendment or supplement thereto, providing “management comfort” with respect to such information, in form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References substance reasonably satisfactory to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterRepresentatives.
(h) The Securities shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Representatives.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day or prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateExecution Time, the Company shall have furnished to the Representatives such further information, certificates a letter in the form of Exhibit A hereto from each officer and documents as director of the Representatives may reasonably requestCompany and all holders of the Company’s equity securities addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone telephone, facsimile or facsimile electronic mail confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx XxxxxxXxxxx Xxxxx, Xxx XxxxMenlo Park, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinCalifornia 94025, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Mirum Pharmaceuticals, Inc.)
Conditions to the Obligations of the Underwriters. The obligations obligation 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 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 Ledgewood PCXxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in form the forms of Exhibits B-1 and substance acceptable to the RepresentativesB-2, respectively.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxxx & Xxxxxxxx LLP, Cayman Islands special intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in the form and substance acceptable to the Representatives.of Exhibit C.
(d) The Representatives shall have received from Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board or Chief Financial Officer the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 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 Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Xxxxxxxxx & Xxxxxxxxx, a member of PricewaterhouseCoopers International Limited, to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement dateletters, letters(which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, that and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included incorporated by reference in the Registration Statement, the Statutory Preliminary Prospectus and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, and reporting on financial or statistical nature (which is limited to accounting, financial or statistical information derived from the other procedures performed by them in respect general accounting records of the financial information Company and its subsidiaries) set forth in the Registration Statement, the Statutory Preliminary Prospectus and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions “The Offering”, “Risk Factors”, “Dilution” and “Capitalization” in the Preliminary Prospectus and the Final Prospectus, the information incorporated by reference in Items 1, 2, 6, 7 and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (g(f) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(f) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(ih) 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 listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(ni) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Securities shall have been listed and admitted and authorized for trading on the NYSE Amex, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx XxxxXxxxx, Xxx Xxxx XX 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Protalix BioTherapeutics, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the 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 Parties 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 Parties made in any certificates pursuant to the provisions hereof, to the performance by the Company Parties of its their obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company Parties 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 Parties shall have requested and caused Ledgewood PCBxxxx Bxxxx L.L.P., counsel for the CompanyCompany Parties, to have furnished to the Representatives its opinions and negative assurance letter opinion, dated the Closing Date and any settlement date and addressed to the Representatives in form and substance acceptable Representatives, with respect to such matters as are reasonably satisfactory 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 any settlement date and addressed to the Representatives in form and substance acceptable to the Representatives.
(d) The Representatives shall have received from Xxxxx Xxxx Vxxxxx & Xxxxxxxx LLPExxxxx L.L.P., counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Parties shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ed) The On the Closing Date, the Company Parties shall have furnished to the Representatives a certificate of the CompanyManaging Member and the General Partner, signed by the Chief Executive Officer or the Chief Financial Officer of the CompanyManaging Member and the General Partner, dated the Closing Date and any settlement dateDate, to the effect that each the signer of such certificate has 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 Offeringoffering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company Parties in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has Parties have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledgeknowledge of such officer, 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 and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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 Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(e) The Company Parties shall have requested and caused each of KPMG LLP and PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the Company’s financial statements and certain Company financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, and the Final Prospectus.
(f) Except as set forth in the Disclosure Package and the Final Prospectus, (i) none of the Company Entities shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus exclusive of any amendment or supplement thereto after the date hereof, 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 or (ii) since such date there shall not have been any change in the capitalization or long-term debt of any of the Company Entities or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, unitholders’ equity, properties, management, business or prospects of the Company Entities taken as a whole the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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).
(ig) 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 or other arrangements the Guarantor’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 transactions contemplated herebypossible change.
(jh) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement date, the Company Parties shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this AgreementAll opinions, or if any of the opinions letters and certificates mentioned above or elsewhere in this Agreement shall not be deemed to be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement 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 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) 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 Ledgewood PCXxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated as of the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the RepresentativesUnderwriters.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxLLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated as of the Closing Date and any settlement date and addressed to the Representatives Representatives, in form and substance acceptable reasonably satisfactory to the RepresentativesUnderwriters.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer and principal financial or Chief Financial Officer accounting officer of the Company, dated as of the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Deloitte and Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that SEC thereunder and containing statements and information of the type customarily included in their opinion accountants’ “comfort letters” to underwriters with respect to the audited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent 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 (g(f) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 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.
(j) The Securities shall have been listed and admitted and authorized for trading on the [Nasdaq Stock Market], and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer, director and substantially all of the security holders of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxxx Procter LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Underwriting Agreement (Sensei Biotherapeutics, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Firm Shares and the Option SecuritiesShares, 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 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 Ledgewood PCRopes & Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions their opinion and negative assurance letter letter, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in the form attached as Exhibits B-1 and substance acceptable to the RepresentativesB-2.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxHall & Xxxxxxx LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in the form and substance acceptable to the Representatives.attached hereto as Exhibit C.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, its opinions their opinion and negative assurance letter, dated the Closing Date and any settlement date and addressed to 17 76508963_4 the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer or and the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary Secretary’s Certificate of the Company, dated the Closing Date in form and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating substance reasonably satisfactory to counsel to the Offering Underwriters and customary for the type of 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 certificateAgreement.
(g) The Company shall have furnished to the Representatives a certificate, dated such Closing Date, of its Chief Financial Officer, or an officer acting in a similar capacity, in form and substance reasonably satisfactory to the Representatives.
(h) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included substantially in the Registration Statement, the Statutory Prospectus and the Prospectus comply form as to form set forth in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.Exhibit D.
(hi) Subsequent 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 18 76508963_4 decrease specified in the letter or letters referred to in paragraph (g(h) of this Section Section 6 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, 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 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.
(l) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Capital Market, and satisfactory evidence of such actions shall have been provided to the Representatives, subject to the official notice of issuance.
(m) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer, director and specified stockholders, as set forth in Schedule III, of the Company addressed to the Representatives. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx Xxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx00 Xxxxxx Xxxxx, Xxx XxxxNew York, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinNY 10001, on the Closing Date and any applicable settlement dateDate.
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:
(ai) The ProspectusCanadian Final Prospectus shall have been filed with the OSC under the Shelf Procedures, (ii) the U.S. Final Prospectus shall have been filed with the SEC pursuant to General Instruction II.L. of Form F-10 under the Securities Act and (iii) the final term sheet contemplated by Section 5(b) hereto, and any supplement theretoother material required to be filed by the Company in accordance with Rule 433(d), shall have been filed with the SEC, in each case, within the applicable time period in the manner prescribed for such filing and within the time period required by Rule 424(b)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 cease trade order affecting the Securities and no other order preventing or suspending the use of any prospectus relating to the Securities shall have been issued and no proceeding for that any such purpose shall have been instituted initiated or threatenedthreatened by the SEC or the OSC.
(b) The Company shall have requested and caused Ledgewood PCXxxxxx Xxxxxx LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Underwriters, in the form and substance acceptable to the Representatives.set forth in Exhibit A.
(c) The Company shall have requested and caused Xxxxx, Xxxxxx and Xxxxxx& Harcourt LLP, Cayman Islands Canadian counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Underwriters, in the form and substance acceptable to the Representatives.set forth in Exhibit B.
(d) The Representatives shall have received from Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, U.S. counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package and the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer President or Chief Financial Officer a Vice President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has carefully have examined the Registration Statement each Preliminary Statement, the Canadian Base Prospectus, the U.S. Base Prospectus, the Canadian Final Prospectus, the U.S. Final Prospectus and the Disclosure Package, any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe Closing Date;
(ii) the receipt obtained from the OSC in respect of the Canadian Base Prospectus remains in effect and no stop order having the effect of ceasing or suspending the effectiveness distribution of or the trading in the securities of the Company nor any notice objecting the use of the Canadian Base Prospectus or the Registration Statement or any notice objecting to its use has been issued by the OSC or the SEC, respectively, and no proceedings for that purpose shall have been instituted orissued, or to the Company’s knowledge, threatened, by the OSC or the SEC, respectively, and any request for additional information by the OSC or the SEC have been complied with; and
(iii) since the date of the most recent audited financial statements included or incorporated by reference in the Statutory Prospectus Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Prospectus Registration Statement (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth or incorporated in or contemplated in the Statutory Prospectus Canadian Final Prospectus, the U.S. Final Prospectus, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Registration Statement.
(f) The receipt obtained from the OSC in respect of the Canadian Base Prospectus shall remain in effect and no order having the effect of ceasing or suspending the distribution of or the trading in the securities of the Company nor any notice objecting the use of the Canadian Base Prospectus or the Registration Statement shall have furnished been issued by the OSC or the SEC, respectively, and no proceedings for that purpose shall have been issued, or to the Representatives a certificate signed Company’s knowledge, threatened, by the Secretary of OSC or the CompanySEC, dated the Closing Date respectively, and any settlement date, certifying (i) that request for additional information by the Charter is true and complete, has not OSC or the SEC shall have been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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 certificatecomplied with.
(g) The Company shall have requested and caused Withum Deloitte LLP, the independent chartered professional accountants of the Company to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement dateletters, letters(which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, and any settlement dateDate (with a “cut-off” date no more than two business days prior to the date of such letter), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent together with signed or reproduced copies of such letter for each of the 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, that in their opinion the audited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Canadian Final Prospectus, the U.S. Final Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letterDisclosure Package.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Canadian Final Prospectus (exclusive of any amendment or supplement thereto), and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, change in or affecting the condition (financial or 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 Canadian Final Prospectus (exclusive of any amendment or supplement thereto), the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) and the Disclosure Package the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Canadian Final Prospectus (exclusive of any amendment or supplement thereto), the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) and the Disclosure Package.
(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 listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) 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 Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx Shearman & Xxxxxxxx Sterling LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxx Xxxxxx, Xxx Xxxxxxxx Xxxxx Xxxx, Xxx Xxxx 00000Xxxxx 0000, Attention: Xxxxxxx X. XxxxxxxxxXxxxxxx, Xx.Xxxxxxx, unless otherwise indicated hereinX0X 0X0, on the Closing Date and any applicable settlement dateDate.
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 Selling Stockholders, 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 Section 4 hereof, to the accuracy of the statements of the Company, the Selling Stockholders, the Adviser and the Administrator made in any certificates pursuant to the provisions hereof, to the performance by the Company Company, the Selling Stockholders, 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 Company, the Adviser and the Administrator shall have requested and caused Ledgewood PCXxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, the Adviser and the Administrator to have furnished to the Representatives its opinions and negative assurance letter opinion, dated the Closing Date and any settlement date and addressed to the Representatives in substantially the form and substance acceptable to the Representatives.attached hereto as Exhibit A.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxxxx LLP, Cayman Islands special Maryland counsel for to the Company, to have furnished to the Representatives its opinions opinion as to certain matters pertaining to Maryland law, dated the Closing Date and any settlement date and addressed to the Representatives in substantially the form attached hereto as Exhibit B.
(d) Each of the Selling Stockholders shall have requested and substance acceptable caused its respective counsel to have furnished to the Representatives its opinion with respect to each of the Selling Stockholders for whom they are acting as counsel, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit C, with such revisions as may be approved by counsel for the Underwriters.
(de) The Representatives shall have received from Xxxxx Xxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Company Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the 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.
(ef) The Company Each of the Company, the Adviser and the Administrator shall have furnished to the Representatives a certificate certificate, signed by the principal executive officer and the principal financial or accounting officer of each of the Company, signed by the Chief Executive Officer or Chief Financial Officer of Adviser and the CompanyAdministrator, as the case may be, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has have carefully examined the Registration Statement Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, the Prospectus and any amendment amendments or supplement thereto, as well as each road show used in connection with the Offering, 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 such date the Closing Date with the same effect as if made on such date 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 such datethe Closing Date; and the statements made in the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus (and any supplement thereto) under the caption “Recent Developments and Estimates” 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, each Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(fg) The Company Each Selling Stockholder shall have furnished to the Representatives a certificate certificate, signed by the Secretary such Selling Stockholder, or appropriate representative of such Selling Stockholder, or by a power of attorney on behalf of the CompanySelling Stockholder, dated the Closing Date and any settlement dateDate, certifying (i) reasonably satisfactory to the Representatives that the Charter is true representations and complete, has not been modified and is warranties of such Selling Stockholder in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force true and correct on and as of the Closing Date with the same effect and have not been modified, (iii) copies of all written correspondence between as if made on the Company or its counsel and the CommissionClosing Date, and (iv) that the Selling Stockholder has complied 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 as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificateother matters as you may reasonably request.
(gh) The Company shall have requested and caused Withum KPMG LLP to have furnished to the Representatives, at the Execution Time and at Time, the Closing Date, Date and any settlement date, date letters, dated respectively as of the Execution Time and as of Time, the Closing Date, Date and any settlement date, in form and substance satisfactory to the Representatives, 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 Regulations and that it has audited the Commission thereunderconsolidated statement of assets and liabilities, that including the consolidated schedule of investments of the Company as of December 31, 2009 and 2008 and the related consolidated statement of operations, changes in their net assets and cash flows for the year ended December 31, 2009, 2008 and 2007 and performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31 of 2010 and as at December 31, 2010, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) in its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus and reported on by 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, of the unaudited interim financial information for the three-month period ended March 31, 2010 and as at March 31, 2010; 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, 2009, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Basic Prospectus, each 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 reporting said unaudited financial statements are not in conformity with generally accepted accounting principles applied on the other procedures performed by them in respect a basis substantially consistent with that of the audited financial information statements included in the Registration Statement, the Statutory Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus; and
(2) with respect to the period subsequent to December 31, 2010, 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 December 31, 2010 unaudited statement of assets and liabilities included in the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, or for the period from December 31, 2010 to such specified date there were any decreases, as compared with December 31, 2010 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.
(iii) it has performed certain other specified procedures as a result of which 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 Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, including the information set forth under the captions “Fees and Expenses” and “Selected Financial and Other Data” in the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (g(h) include any supplement thereto at the date of the applicable letter.
(hi) 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 (g(h) of this Section 6 Section 9 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or 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, each Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, 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, each Preliminary Final Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior Prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(n) Prior to the Closing Date and any settlement dateCompany, the Company Selling Stockholders, the Adviser and the Administrator shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 Section 9 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 Section 9 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, Underwriters on the Closing Date and any applicable settlement dateDate.
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 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) 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 Ledgewood PCSkadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter their opinions, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in the form and substance acceptable to the Representatives.attached hereto as Exhibit A.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxxx Lovells US LLP, Cayman Islands intellectual property counsel for the Company, to have furnished to the Representatives its opinions their opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, substantially in the form and substance acceptable to the Representatives.attached hereto as Exhibit B.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or Chief Financial Officer accounting officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 Offeringoffering 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 such date the Closing Date with the same effect as if made on such date the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such datethe 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).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included substantially in the Registration Statement, the Statutory Prospectus and the Prospectus comply form attached hereto 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.Exhibit C.
(hg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)Statement, 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 (g(e) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(nh) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) The Securities shall have been listed and admitted and authorized for trading on the NASDAQ Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit D hereto from each officer and director of the Company and each of the other holders set forth on Schedule IV hereto. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx Xxxx, 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated herein, on the Closing Date and any applicable settlement dateDate.
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 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 Ledgewood PCXxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished furnish to the Representatives its opinions opinion and negative assurance letter 10b-5 statement, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesof Annex B hereto.
(c) The Company shall have requested and caused Xxxxxx and XxxxxxXxxx X. Xxxxxxx, Cayman Islands counsel for General Counsel of the Company, to have furnished furnish to the Representatives its opinions his opinion, dated the Closing Date and any settlement date and addressed to the Representatives Representatives, in substantially the form and substance acceptable to the Representativesof Annex C hereto.
(d) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, the firm listed in the underwriting agreement as counsel for the Underwriters, its opinions and negative assurance lettersuch opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, 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.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the Chief Executive Officer or and (y) the Chief Financial Officer of the Company, dated the Closing Date and any settlement dateDate, to the effect that each signer the signers of such certificate has 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 road show used in connection with the Offering, and this Agreement and thatthat to the best of their knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date the Closing Date with the same effect as if made on such date the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such datethe 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 EffectEffect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to the Representatives a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all 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.
(g) The Company shall have requested and caused Withum to have furnished to the Representatives, at At the Execution Time and at the Closing Date, the Company shall have requested and any settlement date, caused KPMG LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, and any settlement date, Date in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus 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 reporting on the other procedures performed by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the applicable letter.
(hg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Disclosure Package (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (g(f) of this Section Section 6 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 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(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(ih) 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 listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter, the Millennium Purchase Agreement and the Services Agreement.
(l) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(ni) Prior to the Closing Date and any settlement dateDate, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date or any applicable settlement date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx LLP, the underwriters’ counsel for set forth in the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx., unless otherwise indicated hereinUnderwriting Agreement, on the Closing Date and any applicable settlement dateDate.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Armstrong World Industries Inc)
