Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives. (c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives (d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable); (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (f) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and (ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement. (l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 4 contracts
Samples: Underwriting Agreement (TPG Pace Tech Opportunities Corp.), Underwriting Agreement (TPG Pace Beneficial Finance Corp.), Underwriting Agreement (TPG Pace Tech Opportunities Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer Managing Director of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose or under Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of February 3, 2021 and for the period from July 11February 2, 2019 2021 (date of inceptionincorporation) through June 30February 3, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable)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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii5(ii)6(m) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 4 contracts
Samples: Underwriting Agreement (Oaktree Acquisition Corp. III), Underwriting Agreement (Oaktree Acquisition Corp. III), Underwriting Agreement (Oaktree Acquisition Corp. III)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions (including negative assurance statements) dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, Representative in a form reasonably and substance acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the Representatives, Representative in a form reasonably and substance acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, dated the Closing Date or settlement date (as applicable) 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 Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer Chief Financial Officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 Representative a certificate signed by the Secretary of the Company, dated the Closing Date, certifying (i) that the Charter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11December 1, 2019 2020 (date of inception) through June 30December 31, 20202021, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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 or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New York Stock Exchange, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and Founder’s Purchase Agreement, the Registration Rights Agreement, the Services Agreement, the Warrant Subscription Agreement and the Insider Letter.
(l) At least one (1) Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused certain proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 4 contracts
Samples: Underwriting Agreement (Warburg Pincus Capital Corp I-B), Underwriting Agreement (Warburg Pincus Capital Corp I-A), Underwriting Agreement (Warburg Pincus Capital Corp I-A)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions opinion letter, dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives Representative shall have received from Ropes & Xxxx Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) 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 Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the its Chief Executive Officer and the its principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers signer of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements in all material respects and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), 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 Securities Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of and financial statement schedules included in the Company for Registration Statement, the period from July 11, 2019 (date of inception) through June 30, 2020Statutory Prospectus and the Prospectus, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f(e) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On the Effective Date, the Company shall have delivered to the Representatives Representative executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Private Placement Warrant Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Support Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration and Stockholder Rights Agreement.
(lk) At least one Business Day On or prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(jj) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLPSidley Austin, counsel for the UnderwritersUnderwriter, at 0000 Xxxxxx xx xxx XxxxxxxxXxx Xxxxx Xxxxxxxx Xxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx Xxxxxxxx 00000, Attention: Xxxx Xxxxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 3 contracts
Samples: Underwriting Agreement (New Providence Acquisition Corp. II), Underwriting Agreement (New Providence Acquisition Corp. III), Underwriting Agreement (New Providence Acquisition Corp. II)
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 pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and 10b-5 statement dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes White & Xxxx Case LLP, counsel for the Underwriters, such opinion or opinionsopinions and 10b-5 statement, dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, with respect in a form reasonably acceptable to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersRepresentatives.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or and any settlement date (date, as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement such date (as applicable) with the same effect as if made on the Closing Date or settlement such date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)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 requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or and any settlement date (date, as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or Date, and any settlement date (date, as applicable), the Company shall have furnished to the Representatives Representative 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 New 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Agreement and the Administrative Services Agreement, the Registration and Shareholder Rights Agreement and the Forward Purchase Agreement. On With regard to the Insider Letter, if any additional persons shall become executive officers, directors, director nominees or advisory board members of the Company prior to the Closing Dateend of the 180-day restricted period referred to in Section 6(h), the Company will shall cause each such person, prior to or contemporaneously with their appointment or election as an executive officer, director and director nominee to execute and deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, Representative the Insider Letters and the Registration Rights AgreementLetter.
(l) At The Sponsor (at least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Effective Date) shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount so that together with the net proceeds for the Firm Securities (including the Deferred Discount), or with respect to the Option Securities, the net proceeds from the Option Securities (including the Deferred Discount), the Trust Account would equal the product of the number of Units sold and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii6(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(d), shall be delivered at the office of Ropes White & Xxxx Case LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx Xxxx, 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 3 contracts
Samples: Underwriting Agreement (Pontem Corp), Underwriting Agreement (Pontem Corp), Underwriting Agreement (Pontem Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, including, if applicable, the last sentence of Section 3(b) hereof, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx DLA Piper LLP, U.S. counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and CalderXxxxx, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes & Xxxx Proskauer Rose LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) 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 Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives Representative a certificate signed by the Chief Financial Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the Chief Executive Officer of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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).
(fg) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11March 5, 2019 2021 (date of inception) through June 30[•], 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(hi) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents customary for transactions contemplated hereby as the Representatives Representative may reasonably request.
(ij) 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 New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kl) On the Effective Datedate hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, the Administrative Services Agreement and the Registration Rights Agreement.
(lm) At least one Business Day prior to the Closing Date or the settlement date (date, as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the public offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered remotely by electronic exchange of documents or at the office of Ropes & Xxxx Proskauer Rose LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (Tristar Acquisition I Corp.), Underwriting Agreement (Tristar Acquisition I Corp.), Underwriting Agreement (Tristar Acquisition I Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11September 1, 2019 2020 (date of inception) through June 30September 9, 2020, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and;
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation; and
(iii) statements as to such other matters incident to the transaction contemplated hereby as the Representatives may reasonably request. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical 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 or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the The Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives (i) executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement, the Services Agreement and the Insider Letters on the Closing Date and (ii) executed copies of the Founder’s Purchase Agreement and the Private Placement Warrants Purchase Agreement on the Effective Date.
(l) At least one (1) Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (Leo Holdings Corp. II), Underwriting Agreement (Leo Holdings Corp. II), Underwriting Agreement (Leo Holdings Corp. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Ellenoff Xxxxxxxx & Xxxxxx Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Executive Officer Officers and the its principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of and financial statement schedules included in the Company for Registration Statement, the period from July 11, 2019 (date of inception) through June 30, 2020Statutory Prospectus and the Prospectus, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f(e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f(e) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(lk) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 6 shall be delivered at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx, Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 3 contracts
Samples: Underwriting Agreement (Nebula Caravel Acquisition Corp.), Underwriting Agreement (Nebula Caravel Acquisition Corp.), Underwriting Agreement (Nebula Caravel Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereofOption Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or under Section 8A under the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose or under Section 8A under the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11January 19, 2019 2021 (date of inception) through June September 30, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Global Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(lk) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose or under Section 8A under the Securities Act shall have been instituted or shall have been threatened threatened.
(m) The several obligations of the Underwriters to purchase Option Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 8A 6(d) hereof remains true and correct as of such Option Closing Date;
(ii) opinions and negative assurance letter of Weil, Gotshal & Xxxxxx LLP, counsel for the ActCompany, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b) hereof;
(iii) opinions and negative assurance letter of Ropes & Xxxx LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Option Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Withum substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided that the cutoff date shall not be more than two business days prior to such Option Closing Date; and
(v) such further information, certificates and documents as the Representatives may reasonably request with respect to the issuance of such Option Securities. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions opinions, negative assurance letters and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (Gores Holdings IX, Inc.), Underwriting Agreement (Gores Holdings X, Inc.), Underwriting Agreement (Gores Holdings IX, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the 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 Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of September 3, 2020 and for the period from July 11September 2, 2019 2020 (date of inception) through June 30September 3, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable)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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened threatened.
(n) On or pursuant to Section 8A before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ActFinancial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 3 contracts
Samples: Underwriting Agreement (H.I.G. Acquisition Corp.), Underwriting Agreement (H.I.G. Acquisition Corp.), Underwriting Agreement (H.I.G. Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11April 9, 2019 (date of inception) through June 30April 23, 20202019, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable)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 New 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letters, the Warrant Subscription Registration and Shareholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Oaktree Acquisition Corp.), Underwriting Agreement (Oaktree Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Ellenoff Xxxxxxxx & Xxxxxx Schole LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives Representative shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) 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 Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives Representative a certificate of the Company, signed by the one of its Chief Executive Officer Officers and the its principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG WithumSmith to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), 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 thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11November 13, 2019 2018 (date of inception) through June 30December 31, 20202018, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(hg) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kj) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Administrative Support Agreement, the Warrant Subscription Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(lk) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx 1211 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxEsq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Samples: Underwriting Agreement (DiamondPeak Holdings Corp.), Underwriting Agreement (DiamondPeak 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 3 3, hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxx Xxxx & Xxxxxx Xxxxxxxx London LLP, counsel for the Company, to have furnished to the Representatives Underwriters its opinions dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the RepresentativesUnderwriters, in a form reasonably acceptable to the RepresentativesUnderwriters.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives Underwriters its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the RepresentativesUnderwriters, in a form reasonably acceptable to the RepresentativesUnderwriters.
(d) The Representatives Underwriters shall have received from Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx (UK) LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the RepresentativesUnderwriters, 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 Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or and any settlement date (date, as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement such date (as applicable) with the same effect as if made on the Closing Date or settlement such date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)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 requested and caused KPMG Xxxxxx to have furnished to the RepresentativesUnderwriters, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or and any settlement date (date, as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letterUnderwriters.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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 and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or and any settlement date (date, as applicable), the Company shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Global Market, satisfactory evidence of which shall have been provided to the RepresentativesUnderwriters.
(k) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Underwriters executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreements, the Warrant Subscription Agreement, the Insider Letters Letters, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date (date, as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Underwriters pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 and, if applicable, the last sentence of Section 3 shall be delivered at the office of Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx (UK) LLP, counsel for the Underwriters, at 0000 00 Xxxx Xxxxxx, Xxxxxx, Xxxxxx xx xxx XxxxxxxxXxxxxxx, Xxx Xxxx, Xxx Xxxx 00000X00 0XX, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxx Xxxxxxx, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Samples: Underwriting Agreement (Target Global Acquisition I Corp.), Underwriting Agreement (Target Global Acquisition I Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Ellenoff Xxxxxxxx & Xxxxxx Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each, dated the Closing Date or settlement date (as applicable) and addressed to the 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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of and for the period from July 11, 2019 (date of inception) through June 30year ended December 31, 2020, provided provided, however, that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New York Stock ExchangeNasdaq 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, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Service Agreement.
(l) [Intentionally omitted.]
(m) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx Xxxxxx and Xxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Samples: Underwriting Agreement (Independence Holdings Corp.), Underwriting Agreement (Independence 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 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLPCozen X’Xxxxxx P.C., counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Stuarts Xxxxxx and CalderXxxxxxx Xxxxxxxxx, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx Milbank LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each, dated the Closing Date or settlement date (as applicable) and addressed to the 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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or and any settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New York Stock ExchangeNasdaq, 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Agreement Registration Rights Agreement, the Promissory Note and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx Milbank LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxxxxxx Xxxx Xxxx, 00xx Xxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx XX 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Samples: Underwriting Agreement (Talon 1 Acquisition Corp), Underwriting Agreement (Talon 1 Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11June 3, 2019 2015 (date of inception) through June 30, 20202015, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable)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 New York Stock ExchangeNasdaq 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, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxxx Xxxxxx, Xxx Xxxx Xxxx, Xxx Xxxx Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxx and Xxxxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Pace Holdings Corp.), Underwriting Agreement (Pace 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 3 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxx & Xxxxxx LLPL.L.P, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each, dated the Closing Date or settlement date (as applicable) and addressed to the 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of December 31, 2019 and December 31, 2018 and for the period from July 11years ended December 31, 2019 (date of inception) through June 30and December 31, 20202018, provided provided, however, that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f(e) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f(e) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Support Agreement.
(k) [Intentionally omitted.]
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 6 shall be delivered at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP., counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Samples: Underwriting Agreement (Decarbonization Plus Acquisition Corp), Underwriting Agreement (Decarbonization Plus Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Ellenoff Xxxxxxxx & Xxxxxx Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Executive Officer Officers and the its principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11[●], 2019 2020 (date of inception) through June 30[●], 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(ki) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(lj) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(mk) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx, Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Samples: Underwriting Agreement (TWC Tech Holdings II Corp.), Underwriting Agreement (TWC Tech Holdings II Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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).
(fe) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11August 28, 2019 2018 (date of inception) through June 30October 18, 20202018, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letters, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(lk) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(ml) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Gores Metropoulos, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Winston & Xxxxxx Sxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx Mxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, Mxxxxxx & Xxxx Fxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer and the secretary of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11February 26, 2019 2016 (date of inception) through June 30March 2, 20202016, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical 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 or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New York Stock ExchangeNASDAQ 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreements, the Registration Rights Agreement, the Additional Forward Purchase AgreementsServices Agreement, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementLetters.
(l) At least one (1) Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.the
Appears in 2 contracts
Samples: Underwriting Agreement (CF Corp), Underwriting Agreement (CF Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx Mxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx Mxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx Gxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11January 4, 2019 2021 (date of inception) through June 30March [●], 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase AgreementsAgreement, the Warrant Share Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants Shares to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units Ordinary Shares in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx Gxxx LLP, counsel for the Underwriters, at 0000 1000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Pxxx X. Xxxxx and Xxxxxxxxxxx Cxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (TPG Pace Tech Opportunities II Corp.), Underwriting Agreement (TPG Pace Beneficial II Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WeilXxxxxxx Xxxx, Gotshal Slate, Xxxxxxx & Xxxxxx Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the 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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11March 15, 2019 2016 (date of inception) through June 30April 11, 20202016, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” Dilution and “Capitalization” 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 (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable)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 New York Stock ExchangeNasdaq 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, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount (for the avoidance of doubt, such purchase price may be returned to the Sponsor to the extent the Closing Date does not occur within ten (10) business days from the date of this Agreement, as provided in the Trust Agreement).
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Saban Capital Acquisition Corp.), Underwriting Agreement (Saban Capital Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Vxxxxx & Xxxxxx LLPExxxxx L.L.P, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form and substance reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date or settlement date (as applicable) and addressed to the 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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in by the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11February 22, 2019 2021 (date of inception) through June 30February 24, 20202021, provided provided, however, that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f(e) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f(e) of this Section 6 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i(i) or (ii(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical 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 or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New York Stock ExchangeNasdaq 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 Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Registration Rights Agreement, the Insider Letters Letter and the Registration Rights Administrative Support Agreement.
(l) [Intentionally omitted.]
(m) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 6 shall be delivered at the office of Ropes Dxxxx Xxxx & Xxxx Wxxxxxxx LLP., counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxDxxxx Xxxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Samples: Underwriting Agreement (Decarbonization Plus Acquisition Corp IV), Underwriting Agreement (Decarbonization Plus Acquisition Corp IV)
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 pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a customary form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related customary 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 its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or and any settlement date (date, as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement such date (as applicable) with the same effect as if made on the Closing Date or settlement such date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)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 requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or any settlement date, as applicable, in form and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References substance reasonably satisfactory to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letterRepresentatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or Date, and any settlement date (date, as applicable), 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 New 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 Securities Assignment Trust Agreement, the Forward Purchase Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration and Shareholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date (date, as applicable), the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii6(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 2 contracts
Samples: Underwriting Agreement (Bluescape Opportunities Acquisition Corp.), Underwriting Agreement (Bluescape Opportunities Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, including, if applicable, the last sentence of Section 3(b) hereof, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Ellenoff Gxxxxxxx & Xxxxxx Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Mxxxxx and Calder, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the 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 signed by the Chief Financial Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the Chief Executive Officer of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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).
(fg) The Company shall have requested and caused KPMG Mxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11October 14, 2019 2020 (date of inception) through June 30November 4, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hi) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ij) 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 New York Stock ExchangeNasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(kl) On the Effective Datedate hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, the Administrative Services Agreement and the Registration Rights Agreement.
(lm) At least one Business Day prior to the Closing Date or the settlement date (date, as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the public offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Dxxxx Xxxx & Xxxx Wxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxDxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (North Atlantic Acquisition Corp), Underwriting Agreement (North Atlantic Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Ellenoff Xxxxxxxx & Xxxxxx Schole LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Executive Officer Officers and the its principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG Xxxxx Xxxxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11February 13, 2019 (date of inception) through June 30February 26, 20202019, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) On or prior to the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company, in form and substance satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate
(i) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ij) 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 New York Stock ExchangeNasdaq 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Administrative Support Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(lm) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx 1211 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxEsq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Samples: Underwriting Agreement (Thunder Bridge Acquisition II, LTD), Underwriting Agreement (Thunder Bridge Acquisition II, LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions opinion and negative assurance letter dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, and negative assurance letter dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as any Written Testing-the-Waters Communications and each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the such Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued issued, and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate signed by the signed by the Chief Executive Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Certificate of Incorporation and bylaws of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), comfort letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the financial statements of the Company for included in the period from July 11Registration Statement, 2019 (date of inception) through June 30, 2020, Statutory Prospectus and Prospectus; provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 listed, subject to notice of issuance issuance, on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Insider Letters Letter, the Administrative Services Agreement and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened threatened.
(n) On or pursuant to Section 8A before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ActFinancial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx in electronic format to Sidley Austin LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx[●], unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 2 contracts
Samples: Underwriting Agreement (Focus Impact Acquisition Corp.), Underwriting Agreement (Focus Impact 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 Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WeilSkadden, Gotshal Arps, Slate, Xxxxxxx & Xxxxxx Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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).
(fe) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 customarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements each of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus; provided, including that the information set forth under letter delivered on the captions Closing Date or the Additional Closing Date, as the case may be, shall use a “Dilutioncut-off” and “Capitalization” in date no more than two business days prior to such Closing Date or such Additional Closing Date, as 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 (f) include any supplement thereto at the date of the lettercase may be.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters and Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(k) [Reserved].
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused $6,000,000 of the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount and the remaining $2,000,000 to be paid to the Company.
(m) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx Xxxxxx X. XxxxxxxXxxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (KINS Technology Group, Inc.), Underwriting Agreement (KINS Technology 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 pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, Representatives in a form reasonably and substance acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer and the secretary of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11September 14, 2019 2017 (date of inception) through June 30September 27, 20202017, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical 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 or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase AgreementsRegistration Rights Agreement, the Warrant Subscription Services Agreement, the Private Placement Warrants Purchase Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementLetters.
(l) At least one (1) Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Regalwood Global Energy Ltd.), Underwriting Agreement (Regalwood Global Energy Ltd.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, Credit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, Inc. [●], 2021 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 accounting officer of the Company, dated the Closing Date or and any settlement date (date, as applicable), and to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or and any settlement date (date, as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period periods from July 11January 1, 2019 2021 through January 4, 2021 and from December 21, 2020 (date of inception) through June 30December 31, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, 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; andand Credit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, Inc. [●], 2021
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or and any settlement date (date, as applicable), 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 New 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Additional Forward Purchase AgreementsInsider Letters, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing DateCredit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, the Company will deliver to the Representatives executed copies of the Trust AgreementInc. [●], the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.2021
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor Austerlitz Acquisition Sponsor, LP I shall have caused the purchase price for the Private Placement 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 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 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 electronically, or if by mail, at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx, Esq., unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Austerlitz 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 Issuer contained herein as of the Execution Time, Time and the First Closing Date and any settlement date Option Closing Date pursuant to Section 3 2 hereof, to the accuracy of the statements of the Company 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)) under the Securities Act; any material required to be filed by the Issuer pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.;
(b) The Company Issuer shall have requested and caused Weil, Gotshal & Xxxxxx Xxxxxxx Procter LLP, U.S. counsel for the CompanyIssuer, to have furnished to the Representatives its opinions their opinion and negative assurance letter, each dated the First Closing Date or settlement date (as applicable) and addressed to the Representatives, and each in a form and substance reasonably acceptable satisfactory to the Representatives.;
(c) The Company Issuer shall have requested and caused Xxxxxx and CalderXxxx AG, Cayman Islands Swiss counsel for the CompanyIssuer, to have furnished to the Representatives its opinions their opinion, dated the First Closing Date and addressed to the Representatives, in a form and substance reasonably acceptable satisfactory to the Representatives;
(d) The Representatives shall have received from Ropes & Xxxx LLP, U.S. counsel for the Underwriters, such opinion or opinionstheir negative assurance letter, dated the First Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect in form and substance reasonably satisfactory 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 requireRepresentatives, and the Company Issuer shall have furnished to such counsel such any documents as they request for the purpose of enabling them to pass upon such matters.their negative assurance letter;
(e) The Company Issuer shall have requested and caused Xxxxxxxx, Gerstein & Borun LLP, intellectual property counsel for the Issuer, to have furnished to the Representatives its intellectual property opinion, dated the First Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives;
(f) The Representatives shall have received from Xxxxxxxxx XX, Swiss counsel for the Underwriters, their opinion, dated the First Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, and the Issuer shall have furnished to such counsel any documents they request for the purpose of enabling them to pass their opinion upon any matters agreed with the Representatives;
(g) The Issuer shall have furnished to the Representatives a certificate of the CompanyIssuer, signed by the Chief Executive Officer or President and the principal financial or accounting officer of the CompanyIssuer, dated the First Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Underwriting Agreement and that:
(i) the representations and warranties of the Company Issuer in this Underwriting Agreement are true and correct on and as of the First Closing Date or settlement date (as applicable) with the same effect as if made on the First Closing Date or settlement date (as applicable) 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 the First Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the CompanyIssuer’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 Effectmaterial adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Issuer 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).;
(fh) The Company Issuer shall have requested and caused KPMG Ernst & Young LLP, independent registered public accounting firm for the Issuer, to have furnished to the Representatives, Representatives at the Execution Time and at the First Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the First Closing Date or settlement date (as applicable)Date, in form and substance reasonably satisfactory to the Representatives, and 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 and that they have performed an audit a review of the unaudited interim financial statements information of the Company Issuer for the period from July 11three- and nine-month periods ended September 30, 2019 (date of inception) through June and as at September 30, 20202019, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:accordance with Statement on Auditing Standards No. 100;
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fh) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyIssuer and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).;
(hj) Prior to the First Closing Date or settlement date (as applicable)and the Option Closing Date, the Company Issuer 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.
(jk) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the New York Stock ExchangeThe Nasdaq Global Market, 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.;
(l) At least one Business Day prior the Execution Time, the Issuer shall have furnished to the Closing Date or settlement date (as applicable), Representatives a letter substantially in the Sponsor shall have caused form of Exhibit B hereto from each officer and director of the purchase price for Issuer and from certain specified holders of the Private Placement Warrants equity securities of the Issuer addressed to be deposited into the Trust Account.Representatives; and
(m) No order preventing or suspending On the sale First Closing Date, the Subsidiaries shall be subsidiaries of the Units Issuer as specified in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the ActProspectus. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Underwriting Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Underwriting Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Underwriting Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the First Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Issuer and the Selling Shareholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxPrudential Tower, Xxx Xxxx000 Xxxxxxxx Xxxxxx, Xxx Xxxx Xxxxxx, XX 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein-0000, on the First Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, including, if applicable, the last sentence of Section 3(b) hereof, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx DLA Piper LLP, U.S. counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and CalderXxxxx, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes & Xxxx Proskauer Rose LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) 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 Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives Representative a certificate signed by the Chief Financial Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the Chief Executive Officer of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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).
(fg) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11March 5, 2019 2021 (date of inception) through June 30October 13, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(hi) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents customary for transactions contemplated hereby as the Representatives Representative may reasonably request.
(ij) 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 New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kl) On the Effective Datedate hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, the Administrative Services Agreement and the Registration Rights Agreement.
(lm) At least one Business Day prior to the Closing Date or the settlement date (date, as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the public offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered remotely by electronic exchange of documents or at the office of Ropes & Xxxx Proskauer Rose LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Tristar Acquisition I 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 Issuer contained herein as of the Execution Time, the First Closing Date and any settlement date Option Closing Date pursuant to Section 3 2 hereof, to the accuracy of the statements of the Company 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b)) under the Securities Act; any material required to be filed by the Issuer pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.;
(b) The Company Issuer shall have requested and caused Weil, Gotshal & Xxxxxx Xxxxxxx Procter LLP, U.S. counsel for the CompanyIssuer, to have furnished to the Representatives its opinions their opinion and negative assurance letter, each dated the First Closing Date or settlement date (as applicable) and addressed to the Representatives, and each in a form and substance reasonably acceptable satisfactory to the Representatives.
(c) The Company Issuer shall have requested and caused Xxxxxx and CalderXxxxxxx XX, Cayman Islands Swiss counsel for the CompanyIssuer, to have furnished to the Representatives its opinions their opinion, dated the First Closing Date and addressed to the Representatives, in a form and substance reasonably acceptable satisfactory to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated the First Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect in form and substance reasonably satisfactory 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 requireRepresentatives, and the Company Issuer shall have furnished to such counsel such any documents as they request for the purpose of enabling them to pass their opinion upon such matters.any matters agreed with the Representatives;
(e) The Company Issuer shall have requested and caused Xxxxxxxx, Gerstein & Borun LLP, intellectual property counsel for the Issuer, to have furnished to the Representatives its intellectual property opinion, dated the First Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(f) The Representatives shall have received from Xxxxxxxxx XX, Swiss counsel for the Underwriters, their opinion, dated the First Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, and the Issuer shall have furnished to such counsel any documents they request for the purpose of enabling them to pass their opinion upon any matters agreed with the Representatives;
(g) The Issuer shall have furnished to the Representatives a certificate of the CompanyIssuer, signed by the Chief Executive Officer or President and the principal financial or accounting officer of the CompanyIssuer, dated the First Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Underwriting Agreement and that:
(i) the representations and warranties of the Company Issuer in this Underwriting Agreement are true and correct on and as of the First Closing Date or settlement date (as applicable) with the same effect as if made on the First Closing Date or settlement date (as applicable) 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 the First Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the CompanyIssuer’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 Issuer 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).
(fh) The Company Issuer shall have requested and caused KPMG Ernst & Young LLP, independent registered public accounting firm for the Issuer, to have furnished to the Representatives, Representatives at the Execution Time and at the First Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the First Closing Date or settlement date (as applicable)Date, in form and substance reasonably satisfactory to the Representatives, and 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 and that they have performed an audit a review of the unaudited interim financial statements information of the Company Issuer for the six-month period from July 11, 2019 (date of inception) through ended June 30, 20202016 and as at June 30, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date2016, as applicable, and stating in effect that:accordance with Statement on Auditing Standards No. 100.
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fh) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyIssuer and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(hj) Prior to the First Closing Date or settlement date (as applicable)Date, the Company Issuer 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.
(jk) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the New York Stock ExchangeThe NASDAQ Global Market, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(kl) On At the Effective DateExecution Time, the Company Issuer shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit B hereto from each officer and director of the Securities Assignment Agreement, Issuer and from the Founder’s Purchase Agreement, holders of substantially all of the Forward Purchase Agreement, equity securities of the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior Issuer addressed to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountRepresentatives.
(m) No order preventing or suspending On the sale First Closing Date, the Subsidiaries shall be subsidiaries of the Units Issuer as specified in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the ActProspectus. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Underwriting Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Underwriting Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Underwriting Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the First 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 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxPrudential Tower, Xxx Xxxx000 Xxxxxxxx Xxxxxx, Xxx Xxxx Xxxxxx, XX 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein-0000, on the First Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLPDLA Piper LLP (US), counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and CalderXxxxxx, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives Representative shall have received from Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) 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 Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date Date; Credit Suisse Securities (as applicable);USA) LLC [Pricing Date]
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG Xxxxxx LLP to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11February 5, 2019 2021 (date of inception) through June 30February 5, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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 or settlement date (as applicable)Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives 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 New York Stock ExchangeThe 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 executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Credit Suisse Securities (USA) LLC [Pricing Date] Purchase Agreement, the Insider Letters and Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Moose Pond NCV I Sponsor LLC shall have caused the purchase price for the Private Placement 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(ii5(gg) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx300 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx XxxxXxxxxxx, Xxx Xxxx XX 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. P. Xxxxxxxx Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Moose Pond Acquisition Corp, NCV I)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, including, if applicable, the last sentence of Section 3(b) hereof, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal White & Xxxxxx Case LLP, U.S. counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and Calder& Xxxxxx, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes & Xxxx Proskauer Rose LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) 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 Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives Representative a certificate signed by the Chief Financial Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the Chief Executive Officer of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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).
(fg) The Company shall have requested and caused KPMG Withum to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11, 2019 [•] (date of inception) through June 30[•], 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(hi) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents customary for transactions contemplated hereby as the Representatives Representative may reasonably request.
(ij) 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 New York Stock ExchangeNasdaq, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kl) On the Effective Datedate hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Private Placement Units Purchase Agreement, the Insider Letters Letter, the Administrative Services Agreement and the Registration Rights Agreement.
(lm) At least one Business Day prior to the Closing Date or the settlement date (date, as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the public offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.the
Appears in 1 contract
Samples: Underwriting Agreement (LAMF Global Ventures 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 Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WeilSkadden, Gotshal Arps, Slate, Xxxxxxx & Xxxxxx Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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).
(fe) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 customarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements each of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus; provided, including that the information set forth under letter delivered on the captions Closing Date or the Additional Closing Date, as the case may be, shall use a “Dilutioncut-off” and “Capitalization” in date no more than two business days prior to such Closing Date or such Additional Closing Date, as 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 (f) include any supplement thereto at the date of the lettercase may be.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreements, the Insider Letters and Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(k) [Reserved].
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused $9,000,000 of the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount and the remaining $2,000,000 to be paid to the Company.
(m) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx Xxxxxxx X. XxxxxxxXxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (TCW Special Purpose Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, Credit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, Inc. [●], 2021 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 accounting officer of the Company, dated the Closing Date or and any settlement date (date, as applicable), and to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or and any settlement date (date, as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the audited financial statements of the Company for the period from July 11December 21, 2019 2020 (date of inception) through June 30December 31, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, 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; andand Credit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, Inc. [●], 2021
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or and any settlement date (date, as applicable), 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 New 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Additional Forward Purchase AgreementsInsider Letters, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing DateCredit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, the Company will deliver to the Representatives executed copies of the Trust AgreementInc. [●], the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.2021
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor Austerlitz Acquisition Sponsor, LP I shall have caused the purchase price for the Private Placement 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 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 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 electronically, or if by mail, at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx, Esq., unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Austerlitz Acquisition Corp I)
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 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of December 31, 2020 and for the period from July 11December 18, 2019 2020 (date of inception) through June 30December 31, 2020, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hi) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ij) 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 New York Stock ExchangeNasdaq, 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Private Placement Warrant Purchase Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(lm) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for required proceeds from the sale of the Private Placement 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(ii5(g) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Pathfinder Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx Pxxx Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions legal opinion and disclosure letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in forms reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Mxxxxx and Calder (Hong Kong) LLP, Cayman Islands counsel for the Company, to have furnished to the Representatives its legal opinion, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes Dxxxx Xxxx & Xxxx Wxxxxxxx London LLP, counsel for the Underwriters, such legal opinion or opinionsand disclosure letter, each dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued issued, and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(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, certifying that the Amended and Restated Memorandum and Articles of Association and bylaws of the Company are true and complete, have not been modified and are in full force and effect, that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, copies of all correspondence between the Company or its counsel and the Commission, and as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Mxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the financial statements of the Company for included in the period from July 11Registration Statement, 2019 (date of inception) through June 30, 2020Statutory Prospectus and Prospectus, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f(f) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hi) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ij) 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 New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(kl) On the Effective Closing Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Securities Subscription Agreement, the Warrant Purchase Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(lm) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(mn) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 6 shall be delivered at the office of Ropes in electronic format to Dxxxx Xxxx & Xxxx Wxxxxxxx London LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Rxxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Samples: Underwriting Agreement (Resources Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters of any Offered Securities under the Underwriting Agreement to purchase the Underwritten Offered 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 BVDC and BVAC contained herein as of the Execution Time, date hereof and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company BVDC and BVAC made in any certificates pursuant to the provisions hereof, to the performance by the Company BVDC and BVAC of its obligations hereunder and in the Transaction Documents and to the following additional conditionsconditions as of the Closing Date:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and, the Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) under the Act.
(b) The Company Underwriters shall have requested and caused Weil, Gotshal & Xxxxxx received from Pxxxxx Bxxxx LLP, counsel for BVDC and BVAC and such other counsels admitted in the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably appropriate jurisdictions acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or favorable opinions, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters. Such opinions (a) may express reliance as to factual matters on the representations and warranties made by, and on certificates or settlement date (as applicable) and addressed other documents furnished by, officers of the parties to the RepresentativesTransaction Documents, (b) may assume the due authorization, execution, and delivery of the instruments and documents referred to therein by the parties thereto other than BVAC and BVDC and their respective affiliates, and (c) to the extent such opinion relates to law other than the laws of the State of New York and the federal laws of the United States, may rely on a favorable opinion of local counsel satisfactory to the Underwriters, dated the Closing Date, and satisfactory in form and substance to counsel for the Underwriters.
(c) Pxxxxx Bxxxx LLP and/or such other counsels will also deliver opinions to the Underwriters, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters with respect to certain insolvency and Uniform Commercial Code and true sale matters.
(d) For each State for which the Receivables constitute 10% or more of the initial principal balance of a Receivables included in the Trust Property, the Underwriters shall have received from legal counsel to BVDC admitted in the appropriate jurisdictions acceptable to the Underwriters, favorable opinions, dated the Closing Date and satisfactory in form and substance to the counsel for the Underwriters.
(e) The Underwriters shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters, with respect to the issuance and sale of the Securities, certain matters with respect to the Registration Statement, the Statutory Prospectus, Statement and the Prospectus (together with any supplement thereto) and such other related matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company Underwriters shall have furnished received on the Closing Date, addressed to the Representatives a certificate Underwriters and dated the Closing Date, any opinion delivered to the rating agency or credit enhancer in connection with its rating of the CompanyOffered Securities.
(g) The Underwriters shall have received from counsel for the Trustee, signed by a favorable opinion dated the Chief Executive Officer Closing Date and satisfactory in form and substance to counsel for the principal financial or accounting officer of Underwriters, to the Companyeffect set forth in Exhibit A.
(h) The Underwriters shall have received a favorable opinion addressed to the Underwriters from counsel for the third party credit enhancer, if any, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters.
(i) The Offered Securities shall be rated in the highest category by a nationally recognized rating agency or settlement date such other category as shall be designated in the Underwriting Agreement and the Underwriters shall have received copies of letters to that effect. Further, subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate the direction of a possible change, in the rating accorded (i) the Offered Securities by any nationally recognized rating agency which rates the Offered Securities, (ii) any rated debt instrument issued by BVDC or (iii) any rated debt instrument issued by the third party credit enhancer, if any.
(j) BVDC and BVAC will enter into each Transaction Document to which it is a party at or before the Closing Date and, when delivered by BVDC and BVAC as applicable)the case may be, each such Transaction Document will have been duly authorized, executed, and delivered by such entity and will constitute the legal, valid, and binding agreement of such entity.
(k) Each of BVAC and BVDC shall have delivered to the Underwriters a certificate, dated the Closing Date, of the President or a Vice President to the effect that the signers signer of such certificate have has carefully examined each Transaction Document and to the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and effect that:
: (i) the representations and warranties of the Company such entity contained in this Agreement such agreements are true and correct on current in all material respects at and as of the Closing Date or settlement date (as applicable) with the same effect as if made on at the Closing Date or settlement date Date, (as applicableii) and the Company such entity has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date Date, (as applicable);
(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 such entity’s knowledge threatened, (iv) there shall have been no material adverse change in the Company’s knowledgecondition of such entity, threatened; andfrom that set forth in the Registration Statement, (v) nothing has come to his attention that would lead him to believe that the Prospectus or Registration Statement contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) such entity has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its organization with corporate and other power and authority to own its properties and conduct its business, as now conducted by it, and to enter into and perform its obligations under each Transaction Document, (vii) each Transaction Document has been duly authorized, executed, and delivered by such entity, (viii) the fulfillment of the terms of each Transaction Document will not constitute a material breach of any term or provision of the charter or by-laws of such entity, or conflict with or constitute a material breach, violation, or acceleration of or a default under, the terms of any indenture or other material agreement or instrument to which such entity is a party, and (ix) such entity is not a party to, bound by, or in breach or violation of any indenture or other material agreement or instrument, or subject to or in violation of any statute, regulation, or order of any governmental body, administrative agency, regulatory body, or court having jurisdiction over such entity, that materially and adversely affects or would in the future materially and adversely affect the ability of such entity to perform its obligations under any Transaction Document to which it is a party or the business, operations, or financial condition or the material properties or assets of such entity.
(iiil) since The Underwriters shall have received from independent accountants of BVDC, one or two letters, one such letter dated the date of the most recent financial statements included Prospectus relating to such Offered Securities and satisfactory in the Statutory Prospectus form 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 requested and caused KPMG to have furnished substance to the RepresentativesUnderwriters and counsel for the Underwriters, at the Execution Time and at a second letter, if necessary, dated the Closing Date or settlement date (Date, as applicable), letters, dated respectively to such matters as of the Execution Time and as of the Closing Date or settlement date (as applicable), Underwriters may reasonably request in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect Underwriter and counsel to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020Underwriters, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountBVDC.
(m) No order preventing or suspending All proceedings in connection with the sale of the Units in any jurisdiction designated transactions contemplated by the Representatives pursuant to Section 5(ii) hereof Offered Securities, each Transaction Document and all documents incident hereto or thereto shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, and counsel for the UnderwritersUnderwriters shall have received such information, at 0000 Xxxxxx xx xxx Xxxxxxxxcertificates, Xxx Xxxxopinions, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on documents as the Closing DateUnderwriters may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WeilSkadden, Gotshal Arps, Slate, Xxxxxxx & Xxxxxx Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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).
(fe) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 customarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements each of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus; provided, including that the information set forth under letter delivered on the captions Closing Date or the Additional Closing Date, as the case may be, shall use a “Dilutioncut-off” and “Capitalization” in date no more than two business days prior to such Closing Date or such Additional Closing Date, as 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 (f) include any supplement thereto at the date of the lettercase may be.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreements, the Insider Letters and Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(k) [Reserved].
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused $8,000,000 of the purchase price for the Private Placement Warrants to be deposited into the Trust AccountAccount and the remaining $2,000,000 to be paid to the Company.
(m) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx Xxxxxxx X. XxxxxxxXxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (TCW Special Purpose Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, including, if applicable, the last sentence of Section 4(c) hereof, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Dxxxx Xxxx & Xxxxxx Wxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Mxxxxx & Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, Mxxxxxx & Xxxx Fxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement such date (as applicable) with the same effect as if made on the Closing Date or settlement such date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)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 or Assistant Secretary of the Company, dated the Closing Date, certifying, among other things, (i) that the amended and restated memorandum and articles of association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Mxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hi) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ij) 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 Offered Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(lm) At least one (1) Business Day prior to the Closing Date or the settlement date (date, as applicable), the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units issued in the public offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii6(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes Skadden, Arps, Slate, Mxxxxxx & Xxxx Fxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx300 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx XxxxXxxxxxx, Xxx Xxxx Xxxxxxxxxx, 00000, Attention: Xxxx Gxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxx, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Silver Spike Acquisition Corp II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WeilSkadden, Gotshal Arps, Slate, Xxxxxxx & Xxxxxx Xxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(dc) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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).
(fe) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 customarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements each of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus; provided, including that the information set forth under letter delivered on the captions Closing Date or the Additional Closing Date, as the case may be, shall use a “Dilutioncut-off” and “Capitalization” in date no more than two business days prior to such Closing Date or such Additional Closing Date, as 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 (f) include any supplement thereto at the date of the lettercase may be.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreements, the Insider Letters and Letter, the Registration Rights Agreement and the Administrative Services Agreement.
(k) [Reserved].
(l) At least one Business Day prior to the Closing Date or settlement date Date, (as applicable), i) the Sponsor shall have caused $7,200,000 of the purchase price for the Sponsor Private Placement Warrants to be deposited into the Trust AccountAccount and the remaining $823,528 to be paid to the Company and (ii) the BlackRock funds shall have caused $1,176,472 to be paid to the Company.
(m) No order preventing or suspending the sale of the Units Securities in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx Xxxxxx X. XxxxxxxXxxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (KINS Technology 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 pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of August 7, 2020 and for the period from July 11August 5, 2019 2020 (date of inceptionincorporation) through June 30August 7, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable)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 New 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letters, the Warrant Subscription Registration and Shareholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Oaktree Acquisition Corp. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11January 4, 2019 2021 (date of inception) through June 30March [●], 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase AgreementsAgreement, the Warrant Share Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants Shares to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units Ordinary Shares in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WeilXxxxxx & Xxxxxxx, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11April 12, 2019 2021 (date of inception) through June 30May 3, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (AfterNext HealthTech Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes Xxxxxx & Xxxx LLPXxxxxx L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11November 16, 2019 2016 (date of inception) through June 30December 31, 20202016, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Forward Purchase Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration Rights Agreement and the Administrative Services Support Agreement. .
(k) On or prior to the Closing Effective Date, the Company will deliver to shall have declared the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementDividend.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Xxxxxx & Xxxx LLPXxxxxx L.L.P., counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxxxxx, Xxx XxxxSuite 2500, Xxx Xxxx 00000Houston, Texas 77002, Attention: Xxxx Xxxxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxXxxxxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Samples: Underwriting Agreement (Silver Run Acquisition Corp II)
Conditions to the Obligations of the Underwriters. The ----------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Offered Securities and the Option Securities, as the case may be, of any Series shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein in this Agreement, as supplemented by the related Terms Agreement, as of the Execution Time, respective dates thereof and the related Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any applicable officers' certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder under this Agreement and such Terms Agreement and to the following additional conditionsconditions applicable to the related Offering:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no No stop order suspending the effectiveness of the related Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxx & Xxxxxx Xxxx LLP, counsel for the Company, to shall have furnished to the Representatives its opinions Underwriters an opinion, dated the related Closing Date or settlement date (as applicable) and addressed to the RepresentativesDate, in a form and substance that is customary and reasonably acceptable to the RepresentativesUnderwriters.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel General Counsel for the Company, to Company and FFI shall have furnished to the Representatives its opinions Underwriters an opinion, dated the related Closing Date and addressed to the RepresentativesDate, in a form and substance reasonably acceptable to the RepresentativesUnderwriters, to the effect that:
(i) Each of the Company and FFI have been duly incorporated and each is validly existing as a corporation in good standing in the jurisdiction of its organization, with corporate power to own its properties, to conduct its business as described in the related Final Prospectus and to enter into and perform its obligations under the Operative Agreements to which it is a party and to cause the issuance and sale of the Securities of the related Series, as applicable;
(ii) The Company has full power and authority to deposit the related Home Loans as contemplated herein and in the related Trust Agreement, and FFI has full power and authority to transfer and service the related Home Loans as contemplated in the related Sale and Servicing Agreement;
(iii) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by (a) the Company or FFI of the transactions contemplated in the Operative Agreements to which it is a party or (b) the Company or FFI of the transactions contemplated herein or in the related Sale and Servicing Agreement, except such as may be required under the blue sky laws of any jurisdiction and such other approvals as have been obtained;
(iv) Neither the issuance of the Securities of the related Series nor delivery of the related Offered Securities, nor the consummation of any other of the transactions contemplated in this Agreement, the related Terms Agreement, the related Sale and Servicing Agreement, the related Trust Agreement, the related Indenture or the related Insurance Agreement, if any, nor the fulfillment of the terms of the related Securities, the related Sale and Servicing Agreement, the related Indenture, the related Trust Agreement, this Agreement, the related Terms Agreement or the related Insurance Agreement, as applicable, will conflict with or violate any term or provision of the articles of incorporation or by-laws of the Company or FFI, as applicable, or any statute, order or regulation applicable to the Company or FFI of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or FFI, and will not conflict with, result in a breach or violation or the acceleration of or constitute a default under the terms of any indenture or other material agreement or instrument to which the Company or FFI is a party or by which it is bound; and
(v) There are no actions, proceedings or investigations pending or, to the best knowledge of such counsel, threatened, before any court, administrative agency or other tribunal (i) asserting the invalidity of this Agreement, the related Terms Agreement, the related Sale and Servicing Agreement, the related Trust Agreement, the related Indenture, the related Insurance Agreement, if any, or the related Securities, (ii) seeking to prevent the issuance of the Securities of the related Series or the consummation by the Company or FFI, as applicable, of any of the transactions contemplated by this Agreement, such Terms Agreement, such Sale and Servicing Agreement, such Indenture, such Trust Agreement or such Insurance Agreement, if any, or (iii) which might materially and adversely affect the performance by the Company or FFI, as applicable, of its obligations under, or the validity or enforceability of, this Agreement, such Terms Agreement, such Sale and Servicing Agreement, such Indenture, such Trust Agreement, such Insurance Agreement, if any, or the related Securities. In rendering his opinion such counsel may rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the Company or FFI or of public officials.
(d) The Representatives Underwriters shall have received from Ropes Stroock & Xxxx Stroock & Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the related Closing Date or settlement date (as applicable) and addressed to the RepresentativesDate, with respect to the issuance and sale of the SecuritiesSecurities of the related Series, the related Registration Statement, the Statutory Prospectus, the related Final Prospectus (together with any supplement thereto) and such other related matters as in form and substance that is customary and reasonably acceptable to the Representatives may reasonably requireUnderwriters, and the Company shall have furnished to such counsel such documents as they the Underwriters may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chief Executive Officer President or any Vice President and the principal financial or accounting officer of the Company, dated the related Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the related Registration Statement each Preliminary (excluding any Current Reports and any other documents incorporated by reference therein), the related Final Prospectus, the Prospectus Form 8-K relating to the Subsequent Home Loans, this Agreement and any amendment or supplement thereto, and this the related Terms Agreement and that:
(i) the representations and warranties of the Company and FFI in this Agreement Agreement, as supplemented by the related Terms Agreement, are true and correct in all material respects on and as of the related Closing Date or settlement date (as applicable) with the same effect as if made on the such Closing Date or settlement date (as applicable) Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the such Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s his or her knowledge, threatened; and
(iii) since nothing has come to his or her attention that would lead them to believe that such Registration Statement (excluding any Current Report) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the date statements therein not misleading, that the related Final Prospectus (excluding any related Current Report) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the most recent financial statements circumstances under which they were made, not misleading, or that the Form 8-K relating to the Subsequent Home Loans includes any untrue statement of a material fact or omits to state any information which the Final Prospectus states will be included in such Form 8-K.
(f) Counsel for the Statutory Prospectus Indenture Trustee shall have furnished to the Underwriters an opinion, dated the related Closing Date, in form and substance that is customary and reasonably acceptable to the Underwriters regarding certain matters relating to the Indenture Trustee.
(g) Counsel for the Owner Trustee shall have furnished to the Underwriters an opinion, dated the related Closing Date, in form and substance that is customary and reasonably acceptable to the Underwriters regarding certain matters relating to the Owner Trustee. In addition, such counsel shall furnish to the Underwriters such opinions as to the treatment of the Trust for purposes of state tax law where the Owner Trustee maintains possession of the assets of the Trust as are customary and reasonably satisfactory to the Underwriters.
(h) Ernst & Young LLP shall have furnished to the Underwriters one or more letters in form and substance that is customary and reasonably satisfactory to the Underwriters to the effect that they have performed certain specified procedures requested by the Underwriters with respect to certain information relating to the Offered Securities, the Home Loans and certain matters relating to the Company and the Prospectus Servicer.
(exclusive i) The Policy relating to the Offered Securities of the related Series, if any, shall have been duly executed and issued prior to the Closing Date, in form and substance that is customary and reasonably satisfactory to the Underwriters, and shall conform in all respects to the description thereof in the Prospectus.
(j) If applicable, counsel for the Securities Insurer shall have furnished to the Underwriters an opinion, dated the related Closing Date, in form and substance that is customary and reasonably acceptable to the Underwriters regarding certain matters relating to the Securities Insurer. In rendering such opinion such counsel may rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the Securities Insurer, if any, or of public officials.
(k) The Owner Trustee shall have received from the Seller all funds required to be delivered by the Seller to be deposited in any supplement theretoaccount required to be established in accordance with the related Trust Agreement.
(l) If applicable, the Servicer, as FHA Claims Administrator, and the Seller, as FHA Insurance Holder, shall have executed and delivered the FHA Claims Agreement in form and substance reasonably acceptable to the Underwriters.
(m) The Offered Securities of the related Series shall have received the ratings specified in the related Terms Agreement (the "Required Ratings").
(n) On or prior to the Closing Date, there shall have been no downgrading, nor shall any notice have been given of (i) any intended or possible downgrading or (ii) any review or possible changes, the direction of which has not been indicated, of the rating accorded and originally requested by the Company relating to any previously issued asset-backed securities of the Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act).
(o) If applicable, on or prior to the Closing Date, there has been no Material Adverse Effectdowngrading, except nor shall any notice have been given of (i) any intended or possible downgrading or (ii) any review or possible changes, the direction of which has not been indicated, of the rating accorded the Securities Insurer's claims paying ability by any "nationally recognized statistical rating organization" (as set forth in or contemplated in such term is defined for purposes of the Statutory Prospectus and the Prospectus (exclusive of any supplement theretoExchange Act).
(fp) The Company shall have requested and caused KPMG Subsequent to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)related Terms Agreement, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition business or properties of (financial or otherwisei) or prospects of the Company, whether its parent company or not arising from transactions in the ordinary course any of businessits subsidiaries, 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) abovethe Transferor or (iii) the Securities Insurer, isif any, which the Underwriters conclude, in their reasonable judgment, after consultation with the sole judgment Company, materially impairs the investment quality of the Representatives, Offered Securities of the related Series so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the such Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)related Final Prospectus.
(hq) Prior to the related Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects with respect to the particular Offered Securities of a Series when and as provided in this Agreement and the related Terms Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement and the related Terms Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Underwriters and counsel for the Underwriterstheir counsel, this Agreement (with respect to the related Offered Securities) and the related Terms Agreement and all obligations of the Underwriters hereunder (with respect to the related Offered Securities) and thereunder may be canceled at, or at any time prior to, the related Closing Date by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company in writing writing, or by telephone or facsimile telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company At the Closing Date, the Representatives shall have requested received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP, DLA Piper LLP (US) and caused WeilXxxxxxx, Gotshal Xxxxxxxxxxx & Xxxxxx LLPXxxxxxxx, L.L.C., counsel for the CompanyCompany and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A, Exhibit B and Exhibit C hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to have furnished the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the Representatives its opinions dated extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the RepresentativesDate.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure 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 the President and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date.
(f) The Company shall have requested and caused KPMG Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)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 or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(h) Prior to the Closing Date or settlement date (as applicable)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 have been listed subject to notice of issuance and admitted and authorized for trading on the New York Stock Exchange, 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 D hereto from (i) each officer and director of the Securities Assignment AgreementCompany (other than Xxxxx Xxxxxxxxxx), (ii) each officer of the Founder’s Purchase AgreementManager, the Forward Purchase AgreementStew Xxxx, the Additional Forward Purchase AgreementsXxxxx Xxxxxxxx and Xxxxxx Xx Xxxx and (iii) SPT Investment, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior LLC, in each case addressed to the Closing DateRepresentatives.
(k) At the Execution Time, the Company will deliver shall have furnished to the Representatives executed copies a letter substantially in the form of Exhibit E hereto from (i) the Trust AgreementManager and (ii) Xxxxx Xxxxxxxxxx, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior in each case addressed to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the ActRepresentatives. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx Xxxx, 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein-0000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Starwood Property Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of August 7, 2020 and for the period from July 11August 5, 2019 2020 (date of inception) through June 30August 7, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable)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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Oaktree Acquisition Corp. II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives. Credit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, Inc. [●], 2021
(d) The Representatives shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or and any settlement date (date, as applicable), and to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or and any settlement date (date, as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11January 5, 2019 2021 (date of inception) through June 30January 5, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, 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; andand Credit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, Inc. [●], 2021
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or and any settlement date (date, as applicable), 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 New 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Additional Forward Purchase AgreementsInsider Letters, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing DateCredit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, the Company will deliver to the Representatives executed copies of the Trust AgreementInc. [●], the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.2021
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor Austerlitz Acquisition Sponsor, XX XX shall have caused the purchase price for the Private Placement 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 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 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 electronically, or if by mail, at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx, Esq., unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Austerlitz Acquisition Corp II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11February 14, 2019 2017 (date of inception) through June 30[March 31, 20202017], provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(kj) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. .
(k) On or prior to the Closing Effective Date, the Company will deliver to shall have declared the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights AgreementDividend.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (TPG Pace Energy 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 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, including, if applicable, the last sentence of Section 3(b) hereof, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Winston & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and CalderOgier, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes & Xxxx Proskauer Rose LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) 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 Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives Representative a certificate signed by the Chief Financial Officer of the Company, dated the Closing Date, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the Chief Executive Officer of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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).
(fg) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11January 15, 2019 2021 (date of inception) through June 30January 26, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(hi) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives Representative such further information, certificates and documents as the Representatives Representative may reasonably request.
(ij) 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 New York Stock ExchangeNasdaq, satisfactory evidence of which shall have been provided to the RepresentativesRepresentative.
(kl) On the Effective Datedate hereof, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founders’ Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letters, [the Administrative Services Agreement] and the Registration Rights Agreement.
(lm) At least one Business Day prior to the Closing Date or the settlement date (date, as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units sold in the public offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives Representative pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx Proskauer Rose LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxXxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused WeilXxxx, Gotshal Weiss, Rifkind, Xxxxxxx & Xxxxxx LLP, Xxxxxxxx LLP counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers (Cayman) LLP, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, or threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus 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 requested and caused KPMG Xxxxxx LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11March 1, 2019 2021 (date of inception) through June 30[•], 20202021, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably requestrequest on or prior to three business days prior to the Closing Date.
(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 New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Dateeffective date of the Registration Statement, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Public Warrant Agreement, the Private Warrant Agreement, the Founder’s Purchase Agreement, the Forward Private Placement Warrant Purchase Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration and Shareholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust Account.
(m) 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, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified and (iiii) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at 0000 Xxx Xxxxxx xx xxx XxxxxxxxXxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx Xxx and Xxxxxxxxxxx X. XxxxxxxXxxxx Xxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Waverley Capital Acquisition Corp. 1)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx Kxxxxxxx and Exxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx Mxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx Pxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or Date, and any settlement date (date, as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each road show used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG Mxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or and any settlement date (date, as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11January 21, 2019 2021 (date of inception) through June 30February 4, 2020, 2021; provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fSection 7(f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fSection 7(f) of this Section 6 hereof or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or and any settlement date (date, as applicable), 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 Offered Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq, 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date (date, as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii6(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 shall be delivered at the office of Ropes & Xxxx Pxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Pxxx Xxxxxxxx LLP, 500 Xxxxx Xxxxxx xx xxx XxxxxxxxXxxxxx, Xxxxxx-Xxxxx Xxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxJxxxxxxx Xx, unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Manager contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company At the Closing Date, the Representatives shall have requested received the favorable opinion, dated as of the Closing Date, of each of Sidley Austin LLP, DLA Piper LLP (US) and caused WeilXxxxxxx, Gotshal Xxxxxxxxxxx & Xxxxxx LLPXxxxxxxx, L.L.C., counsel for the CompanyCompany and the Manager, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially in the form set forth in Exhibit A, Exhibit B and Exhibit C hereto, respectively, and to such further effect as counsel to the Underwriters may reasonably request. In rendering each such opinion, as applicable, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to have furnished the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the Representatives its opinions dated extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the RepresentativesDate.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure 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 the President and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment supplements or supplement amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Manager shall have furnished to the Representatives a certificate of the Manager, signed by the President of the Manager, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that the representations and warranties of the Manager in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date.
(f) The Company shall have requested and caused KPMG Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date Date, letters (which may refer to letters previously delivered to one or settlement date (as applicablemore of the Representatives), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and certain financial statement schedules included information contained or incorporated by reference in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus Disclosure Package and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyCompany and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(h) Prior to the Closing Date or settlement date (as applicable)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 Prior to the fairness or reasonableness of Closing Date, 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 New York Stock Exchange, 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 D hereto from (i) each officer and director of the Securities Assignment AgreementCompany (other than Xxxxx Xxxxxxxxxx), (ii) each officer of the Founder’s Purchase AgreementManager, the Forward Purchase AgreementXxxxx Xxxxxxxx and Xxxxxx Xx Xxxx and (iii) SPT Investment, the Additional Forward Purchase AgreementsLLC, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior in each case addressed to the Closing DateRepresentatives.
(k) At the Execution Time, the Company will deliver shall have furnished to the Representatives executed copies a letter substantially in the form of Exhibit E hereto from (i) the Trust AgreementManager and (ii) Xxxxx Xxxxxxxxxx, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior in each case addressed to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the ActRepresentatives. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx Xxxx, 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein-0000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Starwood Property Trust, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer contained herein as at the Time of the Execution TimeSale, the Closing Date and any settlement date pursuant to Section 3 hereofdate, to the accuracy of the statements of the Company 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or any notice objecting pursuant to its use Section 8A under the Securities Act, shall be pending before or, to the knowledge of the Issuer, threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been issued timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and no proceedings in accordance with Section 3(a) hereof; and all requests by the Commission for that purpose additional information shall have been instituted or threatenedcomplied with to the reasonable satisfaction of the Representatives.
(b) The Company Issuer shall have requested and caused Weilthe General Counsel of the Issuer (or, Gotshal & Xxxxxx LLPat the Issuer’s option, one or more other counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished furnish to the Representatives its opinions Underwriters such counsel’s opinion, dated the Closing Date and addressed to the RepresentativesUnderwriters, substantially in a the form reasonably acceptable set forth in Exhibit B hereto.
(c) Cravath, Swaine & Xxxxx LLP, counsel for the Issuer, shall have furnished to the RepresentativesUnderwriters their opinion and a negative assurance letter, dated the Closing Date and addressed to the Underwriters, substantially in the form set forth in Exhibit C hereto.
(d) The Representatives shall have received from Ropes Xxxxxx Xxxxxx & Xxxx Xxxxxxx LLP, counsel for the Underwriters, such an opinion or opinionsand a negative assurance letter, dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, Time of Sale Information and the Prospectus (together as amended or supplemented at the Closing Date) (it being understood that such counsel need not express any comment with respect to the financial statements or any supplement theretoother financial or statistical data that is included in or omitted from the Registration Statement, the Time of Sale Information and the Prospectus) 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.
(e) The Company Issuer shall have furnished to the Representatives a certificate of the CompanyIssuer, signed by the Chief President or an Executive Officer or Senior Vice President and the principal financial or accounting officer of the CompanyIssuer, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Statement, the Time of Sale Information and the Prospectus, any amendments or supplements to the Registration Statement, the Time of Sale Information and the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) no order suspending the effectiveness of the Registration Statement is in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act is pending before or, to their knowledge, threatened by the Commission;
(ii) the representations and warranties of the Company Issuer 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 the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) Date, and the Company Issuer has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatenedDate; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus Registration Statement, the Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse EffectChange, except as set forth in or contemplated in by the Statutory Prospectus Registration Statement, the Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company On the date of this Agreement and on the Closing Date, the Issuer shall have requested and caused KPMG Ernst & Young LLP to have furnished furnish to the Representatives, at “comfort letters,” dated the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as respective dates of the Execution Time and as of the Closing Date or settlement date (as applicable)delivery thereof, in form and substance satisfactory to the Representatives, with respect to both the Issuer and its subsidiaries and Shapell Industries, Inc., 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 published rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior confirming certain matters with respect to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited and unaudited financial statements and other financial statement schedules included and accounting information contained in or incorporated by reference in the Registration Statement, the Statutory Prospectus Time of Sale Information and the Prospectus and reported on by them comply as Prospectus. References to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus Time of Sale Information 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 (fSection 4(f) include any supplement amendments or supplements thereto at the date of the applicable letter.
(g) Subsequent to the Execution Time of Sale or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Time of Sale Information 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 (fSection 4(f) of this Section 6 hereof; or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the CompanyMaterial Adverse Change, 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 Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto) ), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of market the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Statutory Prospectus Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Time of Sale, there shall not have been any decrease in the rating of any of the debt securities of the Issuer or any of its subsidiaries by any “nationally recognized statistical rating organization” registered under Section 15(e) 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) At the Time of Sale, the Issuer shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each person or entity listed on Exhibit A-1 hereto.
(j) On or prior to the Closing Date, the Issuer shall have furnished to the Representatives a Chief Financial Officer’s Certificate substantially in the form of Exhibit D hereto.
(k) At the Closing Date, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance.
(l) Prior to the Closing Date or settlement date (as applicable)Date, the Company Issuer 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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 4 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions opinions, letters and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Issuer in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall 4 will be delivered at the office of Ropes Xxxxxx Xxxxxx & Xxxx Xxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions::
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or threatened..
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, in a form reasonably acceptable to the Representatives..
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date or and any settlement date (date, as applicable), to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that::
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement such date (as applicable) with the same effect as if made on the Closing Date or settlement such date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);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 or under Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened; andand
(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 requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or and any settlement date (date, as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of April 20, 2021 and as of June 30, 2021 and for the period from July 11April 15, 2019 2021 (date of inception) through April 20, 2021 and for the period from April 15, 2021 (inception) through June 30, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that::
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter..
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)..
(h) Prior to the Closing Date or and any settlement date (date, as applicable), 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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement..
(l) At least one Business Day prior to the Closing Date or a settlement date (date, as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii6(e)(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or shall have been threatened threatened.
(n) On or pursuant to Section 8A before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ActFinancial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxxx and Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxx, unless otherwise indicated herein, on the Closing Date..
Appears in 1 contract
Samples: Underwriting Agreement (Iconic Sports Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters of any Offered Securities under the Underwriting Agreement to purchase the Underwritten Offered 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 WOAR and World Omni contained herein as of the Execution Time, date hereof and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company WOAR made in any certificates pursuant to the provisions hereof, to the performance by the Company WOAR of its obligations hereunder and to the following additional conditionsconditions with respect to the Offered Securities:
(a) The ProspectusRegistration Statement shall have become effective not later than 4:00 p.m., and any supplement theretoNew York City time, have been filed in on the manner and within day following the time period required by Rule 424(b)Effective Date; and no stop order suspending the effectiveness of the Registration 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, if required, the Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) under the Act.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives Underwriters shall have received from Ropes Cadwalader, Xxxxxxxxxx & Xxxx LLPXxxx, counsel for WOAR and World Omni and such other counsels admitted in the Underwritersappropriate jurisdictions acceptable to the Representative, such opinion or favorable opinions, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters. Such opinions (a) may express reliance as to factual matters on the representations and warranties made by, and on certificates or settlement date other documents furnished by, officers of the parties to the Transaction Documents, (as applicableb) may assume the due authorization, execution, and addressed delivery of the instruments and documents referred to therein by the parties thereto other than WOAR, World Omni and their respective affiliates, and (c) to the extent such opinion relates to law other than the laws of the State of New York and the federal laws of the United States, may rely on a favorable opinion of local counsel satisfactory to the Representatives, dated the Closing Date, and satisfactory in form and substance to counsel for the Underwriters.
(c) Cadwalader, Xxxxxxxxxx & Xxxx and/or such other counsels will also deliver opinions to the Underwriters, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters with respect to certain insolvency and Uniform Commercial Code matters.
(d) For each State for which the Receivables constitute [__%] or more of the initial principal balance of a Receivables included in the Trust Fund, the Underwriters shall have received from legal counsel to WOAR admitted in the appropriate jurisdictions acceptable to the Representative, favorable opinions, dated the Closing Date and satisfactory in form and substance to the counsel for the Underwriters.
(e) The Underwriters shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters, with respect to the issuance and sale of the Securities, certain matters with respect to the Registration Statement, the Statutory Prospectus, Statement and the Prospectus (together with any supplement thereto) and such other related matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company Underwriters shall have furnished received on the Closing Date, addressed to the Representatives a certificate Underwriters and dated the Closing Date, any opinion delivered to the rating agency or credit enhancer in connection with its rating of the CompanyOffered Securities.
(g) The Underwriters shall have received from counsel for the Trustee, signed by the Chief Executive Officer and the principal financial or accounting officer of the Companya favorable opinion, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters, to the effect set forth in Exhibit A.
(h) The Underwriters shall have received a favorable opinion addressed to the Underwriters from counsel for the third party credit enhancer, if any, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters.
(i) The Offered Securities shall be rated in [the highest category] by a nationally recognized rating agencies or settlement date such other category as shall be designated in the Underwriting Agreement. Further, subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate the direction of a possible change, in the rating accorded (i) the Offered Securities by any nationally recognized rating agency which rates the Offered Securities or (ii) any rated debt instrument issued by the third party credit enhancer, if any.
(j) WOAR and World Omni will enter into each Transaction Document to which it is a party at or before the Closing Date and, when delivered by WOAR and World Omni as applicable)the case may be, each such Transaction Document will have been duly authorized, executed, and delivered by such entity and will constitute the legal, valid, and binding agreement of such entity.
(k) Each of World Omni and WOAR shall have delivered to the Underwriters a certificate, dated the Closing Date, of the President or a Vice President to the effect that the signers signer of such certificate have has carefully examined each Transaction Document and to the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and effect that:
: (i) the representations and warranties of the Company such entity contained in this Agreement such agreements are true and correct on current in all material respects at and as of the Closing Date or settlement date (as applicable) with the same effect as if made on at the Closing Date or settlement date Date, (as applicableii) and the Company such entity has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at on or prior to the Closing Date or settlement date Date, (as applicable);
(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 such entity's knowledge threatened, (iv) there shall have been no material adverse change in the Company’s knowledgecondition of such entity, threatened; andfrom that set forth in the Registration Statement, (v) nothing has come to its attention that would lead it to believe that the Prospectus or Registration Statement contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) such entity has been duly incorporated or duly organized (as applicable) and is validly existing as a corporation or a limited liability company (as applicable) in good standing under the laws of the jurisdiction of its organization with corporate or requisite (as applicable) and other power and authority to own its properties and conduct its business, as now conducted by it, and to enter into and perform its obligations under each Transaction Document, (vii) each Transaction Document has been duly authorized, executed, and delivered by such entity, (viii) the fulfillment of the terms of each Transaction Document will not constitute a material breach of any term or provision of the charter or by-laws of such entity, or conflict with or constitute a material breach, violation, or acceleration of or a default under, the terms of any indenture or other material agreement or instrument to which such entity is a party, and (ix) such entity is not a party to, bound by, or in breach or violation of any indenture or other material agreement or instrument, or subject to or in violation of any statute, regulation, or order of any governmental body, administrative agency, regulatory body, or court having jurisdiction over such entity, that materially and adversely affects or would in the future materially and adversely affect the business, operations, or financial condition or the material properties or assets of such entity.
(iiil) since The Underwriters shall have received from independent accountants of WOAR, one or two letters, one such letter dated the date of the most recent financial statements included Prospectus relating to such Offered Securities and satisfactory in the Statutory Prospectus form 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 requested and caused KPMG to have furnished substance to the RepresentativesUnderwriters and counsel for the Underwriters, at the Execution Time and at a second letter, if necessary, dated the Closing Date or settlement date (Date, as applicable), letters, dated respectively to such matters as of the Execution Time and as of the Closing Date or settlement date (as applicable), Underwriters may reasonably request in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect Underwriter and counsel to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020Underwriters, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountWOAR.
(m) No order preventing or suspending All proceedings in connection with the sale of the Units in any jurisdiction designated transactions contemplated by the Representatives pursuant to Section 5(ii) hereof Offered Securities, each Transaction Document and all documents incident hereto or thereto shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, and counsel for the UnderwritersUnderwriters shall have received such information, at 0000 Xxxxxx xx xxx Xxxxxxxxcertificates, Xxx Xxxxopinions, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on documents as the Closing DateUnderwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (World Omni Auto Receivables LLC)
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Offered Securities and the Option Securities, as the case may be, of any Series shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein in this Agreement, as supplemented by the related Terms Agreement, as of the Execution Time, respective dates thereof and the related Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any applicable officers' certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder under this Agreement and such Terms Agreement and to the following additional conditionsconditions applicable to the related Offering:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no No stop order suspending the effectiveness of the related Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Brown & Xxxxxx Wood LLP, counsel for the Company, to shall have furnished to the Representatives its opinions xx xxe Uxxxxwriters an opinion, dated the related Closing Date or settlement date (as applicable) and addressed to the RepresentativesDate, in a form and substance that is customary and reasonably acceptable to the RepresentativesUnderwriters.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel General Counsel for the Company, to Company and FFI shall have furnished to the Representatives its opinions Underwriters an opinion, dated the related Closing Date and addressed to the RepresentativesDate, in a form and substance reasonably acceptable to the RepresentativesUnderwriters, to the effect that:
(i) Each of the Company and FFI have been duly incorporated and each is validly existing as a corporation in good standing in the jurisdiction of its organization, with corporate power to own its properties, to conduct its business as described in the related Final Prospectus and to enter into and perform its obligations under the Operative Agreements to which it is a party and to cause the issuance and sale of the Securities of the related Series, as applicable;
(ii) The Company has full power and authority to deposit the related Home Loans as contemplated herein and in the related Trust Agreement, and FFI has full power and authority to transfer and service the related Home Loans as contemplated in the related Sale and Servicing Agreement;
(iii) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by (a) the Company or FFI of the transactions contemplated in the Operative Agreements to which it is a party or (b) the Company or FFI of the transactions contemplated herein or in the related Sale and Servicing Agreement, except such as may be required under the blue sky laws of any jurisdiction and such other approvals as have been obtained;
(iv) Neither the issuance of the Securities of the related Series nor delivery of the related Offered Securities, nor the consummation of any other of the transactions contemplated in this Agreement, the related Terms Agreement, the related Sale and Servicing Agreement, the related Trust Agreement, the related Indenture or the related Insurance Agreement, if any, nor the fulfillment of the terms of the related Securities, the related Sale and Servicing Agreement, the related Indenture, the related Trust Agreement, this Agreement, the related Terms Agreement or the related Insurance Agreement, as applicable, will conflict with or violate any term or provision of the articles of incorporation or by-laws of the Company or FFI, as applicable, or any statute, order or regulation applicable to the Company or FFI of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or FFI, and will not conflict with, result in a breach or violation or the acceleration of or constitute a default under the terms of any indenture or other material agreement or instrument to which the Company or FFI is a party or by which it is bound; and
(v) There are no actions, proceedings or investigations pending or, to the best knowledge of such counsel, threatened, before any court, administrative agency or other tribunal (i) asserting the invalidity of this Agreement, the related Terms Agreement, the related Sale and Servicing Agreement, the related Trust Agreement, the related Indenture, the related Insurance Agreement, if any, or the related Securities, (ii) seeking to prevent the issuance of the Securities of the related Series or the consummation by the Company or FFI, as applicable, of any of the transactions contemplated by this Agreement, such Terms Agreement, such Sale and Servicing Agreement, such Indenture, such Trust Agreement or such Insurance Agreement, if any, or (iii) which might materially and adversely affect the performance by the Company or FFI, as applicable, of its obligations under, or the validity or enforceability of, this Agreement, such Terms Agreement, such Sale and Servicing Agreement, such Indenture, such Trust Agreement, such Insurance Agreement, if any, or the related Securities. In rendering his opinion such counsel may rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the Company or FFI or of public officials.
(d) The Representatives Underwriters shall have received from Ropes Stroock & Xxxx Stroock & Lavan LLP, counsel for the Underwriters, such opinion or opinionsopinionx, dated xxted the related Closing Date or settlement date (as applicable) and addressed to the RepresentativesDate, with respect to the issuance and sale of the SecuritiesSecurities of the related Series, the related Registration Statement, the Statutory Prospectus, the related Final Prospectus (together with any supplement thereto) and such other related matters as in form and substance that is customary and reasonably acceptable to the Representatives may reasonably requireUnderwriters, and the Company shall have furnished to such counsel such documents as they the Underwriters may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chief Executive Officer President or any Vice President and the principal financial or accounting officer of the Company, dated the related Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the related Registration Statement each Preliminary (excluding any Current Reports and any other documents incorporated by reference therein), the related Final Prospectus, the Prospectus Form 8-K relating to the Subsequent Home Loans, this Agreement and any amendment or supplement thereto, and this the related Terms Agreement and that:
(i) the representations and warranties of the Company and FFI in this Agreement Agreement, as supplemented by the related Terms Agreement, are true and correct in all material respects on and as of the related Closing Date or settlement date (as applicable) with the same effect as if made on the such Closing Date or settlement date (as applicable) Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the such Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s his or her knowledge, threatened; and
(iii) since nothing has come to his or her attention that would lead them to believe that such Registration Statement (excluding any Current Report) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the date statements therein not misleading, that the related Final Prospectus (excluding any related Current Report) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the most recent financial statements circumstances under which they were made, not misleading, or that the Form 8-K relating to the Subsequent Home Loans includes any untrue statement of a material fact or omits to state any information which the Final Prospectus states will be included in such Form 8-K.
(f) Counsel for the Statutory Prospectus Indenture Trustee shall have furnished to the Underwriters an opinion, dated the related Closing Date, in form and substance that is customary and reasonably acceptable to the Underwriters regarding certain matters relating to the Indenture Trustee.
(g) Counsel for the Owner Trustee shall have furnished to the Underwriters an opinion, dated the related Closing Date, in form and substance that is customary and reasonably acceptable to the Underwriters regarding certain matters relating to the Owner Trustee. In addition, such counsel shall furnish to the Underwriters such opinions as to the treatment of the Trust for purposes of state tax law where the Owner Trustee maintains possession of the assets of the Trust as are customary and reasonably satisfactory to the Underwriters.
(h) Ernst & Young LLP shall have furnished to the Underwriters one or more letters in form and substance that is customary and reasonably satisfactory to the Underwriters to the effect that they have performed certain specified procedures requested by the Underwriters with respect to certain information relating to the Offered Securities, the Home Loans and certain matters relating to the Company and the Prospectus Servicer.
(exclusive i) The Policy relating to the Offered Securities of the related Series, if any, shall have been duly executed and issued prior to the Closing Date, in form and substance that is customary and reasonably satisfactory to the Underwriters, and shall conform in all respects to the description thereof in the Prospectus.
(j) If applicable, counsel for the Securities Insurer shall have furnished to the Underwriters an opinion, dated the related Closing Date, in form and substance that is customary and reasonably acceptable to the Underwriters regarding certain matters relating to the Securities Insurer. In rendering such opinion such counsel may rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the Securities Insurer, if any, or of public officials.
(k) The Owner Trustee shall have received from the Seller all funds required to be delivered by the Seller to be deposited in any supplement theretoaccount required to be established in accordance with the related Trust Agreement.
(l) If applicable, the Servicer, as FHA Claims Administrator, and the Seller, as FHA Insurance Holder, shall have executed and delivered the FHA Claims Agreement in form and substance reasonably acceptable to the Underwriters.
(m) The Offered Securities of the related Series shall have received the ratings specified in the related Terms Agreement (the "Required Ratings").
(n) On or prior to the Closing Date, there shall have been no downgrading, nor shall any notice have been given of (i) any intended or possible downgrading or (ii) any review or possible changes, the direction of which has not been indicated, of the rating accorded and originally requested by the Company relating to any previously issued asset-backed securities of the Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act).
(o) If applicable, on or prior to the Closing Date, there has been no Material Adverse Effectdowngrading, except nor shall any notice have been given of (i) any intended or possible downgrading or (ii) any review or possible changes, the direction of which has not been indicated, of the rating accorded the Securities Insurer's claims paying ability by any "nationally recognized statistical rating organization" (as set forth in or contemplated in such term is defined for purposes of the Statutory Prospectus and the Prospectus (exclusive of any supplement theretoExchange Act).
(fp) The Company shall have requested and caused KPMG Subsequent to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)related Terms Agreement, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition business or properties of (financial or otherwisei) or prospects of the Company, whether its parent company or not arising from transactions in the ordinary course any of businessits subsidiaries, 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) abovethe Transferor or (iii) the Securities Insurer, isif any, which the Underwriters conclude, in their reasonable judgment, after consultation with the sole judgment Company, materially impairs the investment quality of the Representatives, Offered Securities of the related Series so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the such Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)related Final Prospectus.
(hq) Prior to the related Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects with respect to the particular Offered Securities of a Series when and as provided in this Agreement and the related Terms Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement and the related Terms Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives Underwriters and counsel for the Underwriterstheir counsel, this Agreement (with respect to the related Offered Securities) and the related Terms Agreement and all obligations of the Underwriters hereunder (with respect to the related Offered Securities) and thereunder may be canceled at, or at any time prior to, the related Closing Date by the RepresentativesUnderwriters. Notice of such cancellation shall be given to the Company in writing writing, or by telephone or facsimile telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company 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 Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b)) under the Securities Act; any material required to be filed by the Issuer pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Issuer shall have requested and caused Weil, Gotshal & Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the CompanyIssuer, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representativestheir opinion, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, substantially in a the form reasonably acceptable attached hereto as Exhibit A.
(c) The Issuer shall have requested and caused Redl Life Science Patent Attorneys, intellectual property counsel for the Issuer, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in the form attached hereto as Exhibit B.
(d) The Representatives shall have received from Ropes & Xxxx Xxxxxxx Procter LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusDisclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, 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.;
(e) The Company Issuer shall have furnished to the Representatives a certificate of the CompanyIssuer, signed by the Chief Executive Officer and the principal financial or accounting officer Chief Operating Officer and Chief Financial Officer of the CompanyIssuer, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the Offering, and this Underwriting Agreement and that:
(i) the representations and warranties of the Company Issuer in this Underwriting Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company Issuer has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the CompanyIssuer’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 Issuer shall have requested and caused KPMG PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 customarily 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 and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited unaudited financial statements and certain financial statement schedules included information contained in the Registration Statement, the Statutory Prospectus Disclosure Package, and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accountingeach free writing prospectus, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letterif any.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyIssuer and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the 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).
(h) Prior to the Closing Date or settlement date (as applicable)Date, the Company Issuer shall have furnished to the Representatives such further customary 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 have been listed subject to notice of issuance and admitted and authorized for trading on the New York Stock ExchangeNASDAQ Global Market, and satisfactory evidence of which such actions shall have been provided to the Representatives.
(kj) On At the Effective DateExecution Time, the Company Issuer shall have delivered furnished to the Representatives executed copies a letter substantially in the form of Exhibit C hereto from each officer and director of the Securities Assignment AgreementIssuer and specified stockholders and option holders of the Issuer, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior addressed to the Closing DateCitigroup Global Markets Inc. and Xxxxx and Company, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the ActLLC. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Underwriting Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Underwriting Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Underwriting Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Issuer in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx Xxxxxxx Procter LLP, counsel for the Underwriters, at 0000 000 Xxxxxx xx xxx XxxxxxxxXxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Ellenoff Xxxxxxxx & Xxxxxx Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Executive Officer Officers and the its principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 1110, 2019 2020 (date of inception) through June 30July 24, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(ki) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(lj) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(mk) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx, Esq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Samples: Underwriting Agreement (TWC Tech Holdings II Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 4 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, including, if applicable, the last sentence of Section 4(c) hereof, and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxx Xxxx & Xxxxxx Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and & Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement such date (as applicable) with the same effect as if made on the Closing Date or settlement such date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)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 or Assistant Secretary of the Company, dated the Closing Date, certifying, among other things, (i) that the amended and restated memorandum and articles of association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hi) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ij) 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 Offered Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(lm) At least one (1) Business Day prior to the Closing Date or the settlement date (date, as applicable), the Sponsor Company shall have caused proceeds from the purchase price for sale of the Private Placement Warrants to be deposited into the Trust AccountAccount such that the cumulative amount deposited into the Trust Account as of such Closing Date or settlement date shall equal the product of the number of Units issued in the public offering as of such Closing Date or settlement date and the public offering price per Unit as set forth on the cover of the Prospectus.
(mn) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii6(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Ropes Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx XxxxXxxxxxx, Xxx Xxxx Xxxxxxxxxx, 00000, Attention: Xxxx Xxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxx, unless otherwise indicated herein, on the Closing DateDate or the applicable settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Silver Spike Acquisition Corp II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Adviser and the Administrator contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofor the Option Closing Date, as the case may be, to the accuracy of the statements of the Company Company, the Adviser and the Administrator made in any certificates pursuant to the provisions hereof, to the performance by the Company Company, the Adviser or the Administrator of its their obligations hereunder and to the following additional conditions:
(a) The Prospectus, Final Prospectus and any supplement thereto, supplements thereto shall have been filed in the manner and within the time period required by Rule 424(b)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 shall have requested and caused Weilspecial counsel for the Company, Gotshal & Xxxxxx LLPthe Adviser and the Administrator 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. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company, the Adviser and the Administrator and public officials. References to the Final Prospectus shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations.
(c) The Company shall have requested and caused Maryland counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representativesopinion, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the RepresentativesUnderwriters, in a form and substance reasonably acceptable satisfactory to the Representatives. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations.
(d) You shall have received on the Closing Date an opinion of counsel for the Adviser and the Administrator, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives. In rendering such opinion, such counsel may limit its opinion to matters of law in relevant jurisdictions in which it is licensed to practice and may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus shall also include any supplements thereto at the Closing Date. Such opinion may contain customary assumptions, exclusions and limitations.
(e) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Statutory Prospectus, Preliminary Prospectus and the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Adviser shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company Each of the Company, the Adviser and the Administrator shall have furnished to the Representatives a certificate of the Companycertificate, signed by the Chief Chairman of the Board or the President or Executive Officer Vice President and the principal financial or accounting officer of each of the Company, the Adviser and the Administrator, as the case may be, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus, the Prospectus and any amendment amendments or supplement thereto, supplements thereto and this Agreement and that:
(i) the The representations and warranties of the Company Company, the Adviser or the Administrator, as the case may be, in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has Company, the Adviser or the Administrator, as the case may be, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s, the Adviser’s or the Administrator’s knowledge, as the case may be, threatened; and
(iii) since Since the date of the most recent financial statements included in the Statutory Prospectus and the Final Prospectus (exclusive of any supplement thereto) (with respect to the certificate of the Company) and since the date of the Final Prospectus (exclusive of any supplements thereto) (with respect to the certificates of the Adviser and the Administrator), there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Adviser or the Administrator, as the case may be, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(fg) The Company shall have requested and caused KPMG PricewaterhouseCoopers LLC to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)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 the Commission thereunder Regulations and that they have it has performed an audit a review of the unaudited interim financial statements information of the Company for the three-month period from July 11, 2019 (date of inception) through ended June 30, 20202012 and as at June 30, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date2012, as applicable, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) in their its opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Base Prospectus, each Preliminary Prospectus and the Final Prospectus and reported on by them it comply as to form in all material respects with the applicable accounting requirements of the Act, the 1940 Act and the Rules and Regulations; and
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; its limited review, in accordance with standards established under Public Company Accounting Oversight Board AU Section 722, of the unaudited interim financial information for the three-month period ended June 30, 2012 and as at June 30, 2012, as indicated in its report dated August 8, 2012; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and Audit and Nominating and Corporate Governance 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 June 30, 2012, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and the 1940 Act and with the related rules and regulations adopted by the CommissionCommission with respect to registration statements on Form N-2; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement, the Base Prospectus, each Preliminary Prospectus and the Final Prospectus; and
(ii2) they have with respect to the period subsequent to June 30, 2012, there were, at a specified date not more than five days prior to the date of the letter, any material changes in the capital stock of the Company, excluding issuances in accordance with the Company’s dividend reinvestment plan, except for changes set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives.
(iii) it has performed certain other specified procedures as a result of which they it determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Base Prospectus, each Preliminary Prospectus and the Final Prospectus, including the information set forth under the captions “DilutionSelected Financial Data” and “CapitalizationFees and Expenses” in the Statutory 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 (fg) include any supplement thereto at the date of the letter.
(gh) The Company shall have furnished to the Representatives a certificate, dated the date hereof and the Closing Date and addressed to the Underwriters, of its chief financial officer with respect to certain financial data contained in each Preliminary Prospectus and the Final Prospectus, providing “management comfort” with respect to such information, 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 each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), prospects, earnings, business or prospects properties of the CompanyCompany and the Adviser, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Base Prospectus, each Preliminary Prospectus and the Final Prospectus (exclusive of any supplement thereto).
(hj) Apollo Global Management, LLC shall have delivered to you a certificate signed by one of its senior officers in the form attached as Exhibit A.
(k) Prior to the Closing Date or settlement date (as applicable)Date, the Company Company, the Adviser and the Administrator shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(il) FINRA Subsequent to the Execution Time, there shall not have raised been any objection with respect to decrease in the fairness or reasonableness rating of any of the underwriting or other arrangements Company’s debt securities below investment grade by any “nationally recognized statistical rating organization” (as such term is defined under Section 3(a)(62) of the transactions contemplated hereby.
(jExchange Act) The Securities shall be duly listed subject to or any notice given of issuance on any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the New 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 direction of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Accountpossible change.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. .
(n) The documents required to be delivered by this Section 6 7 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, Underwriters on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities 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 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of December 31, 2020 and for the period from July 11December 18, 2019 2020 (date of inceptionincorporation) through June 30December 31, 2020, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fg) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fg) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hi) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ij) 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 New York Stock ExchangeNasdaq, 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Private Placement Warrant Purchase Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(lm) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for required proceeds from the sale of the Private Placement 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(ii5(g) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Pathfinder Acquisition Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and as of 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 delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The ProspectusCompany shall have received from the lenders under the Bank Facility all consents, waivers and any supplement thereto, have been filed in authorizations necessary for the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness consummation of the Registration Statement or any notice objecting transactions contemplated hereby, if any, in form and substance reasonably satisfactory to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthe Underwriters.
(b) The Company shall have requested furnished to the Underwriters the opinions of (i) Milbank, Tweed, Xxxxxx & XxXxxx LLP as to federal tax and caused Weilsecurities law and New York law and (ii) Xxxxxxx Xxxxxxxx as to Nevada law, Gotshal & Xxxxxx LLP, each in their respective capacities as counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) Date, in form and addressed substance satisfactory to the RepresentativesUnderwriters, and substantially in a the form reasonably acceptable of Exhibit A-1 and Exhibit A-2, respectively, hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of another state’s law, to the Representativesextent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives Underwriters shall have received from Ropes Shearman & Xxxx Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesDate, with respect to the issuance and sale of the SecuritiesNotes, the Registration StatementIndenture, the Statutory Prospectus, Disclosure Package and the Prospectus (together with any supplement thereto) and other related matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives Underwriters a certificate of the Company, signed by the Chief Executive Officer Chairman of the Board, the President or a Vice President and the principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Disclosure Package and the Prospectus, any supplement or amendment to the Disclosure Package or the Prospectus and any amendment or supplement thereto, 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 in all material respects on and as of the Execution Time and shall be true and correct in all material respects on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatenedDate; and
(iiiii) 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 amendment or supplement thereto), (A) there has been no Material Adverse Effectmaterial change in the capital stock or long-term debt of the Company except as set forth in or contemplated in the Disclosure Package and the Prospectus or documents incorporated by reference therein, (B) there has been no material adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and its Subsidiaries, considered as one enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Prospectus or documents incorporated by reference therein (exclusive of any amendment or supplement thereto)) and (C) the Company shall not have sustained any material loss or interference with its business from fire, explosion, earthquake, flood or other calamity or from any court, legislative or other governmental action, order or decree which is not set forth in the Disclosure Package and the Prospectus or the documents incorporated by reference therein.
(fe) The Company On the date hereof, the Underwriters shall have requested and caused KPMG to have furnished received from Ernst & Young LLP, independent certified public accountants for the Company, a letter dated the date hereof addressed to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Underwriters, in form and substance satisfactory to the RepresentativesUnderwriters, confirming delivered according to Statement of Auditing Standards Nos. 72 and 76 (or any successor bulletins), covering the financial information in the Disclosure Package and other customary information.
(f) On the Closing Date, the Underwriters shall have received from Ernst & Young LLP, independent certified public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Underwriter, to the effect that they are a registered public accounting firm reaffirm the statements made in the letter furnished by them pursuant to subsection (e) of this Section 6, except that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of (i) it shall cover the financial statements of information in the Company Prospectus and any amendment or supplement thereto and (ii) the specified date referred to therein for the period from July 11, 2019 (date carrying out of inception) through June 30, 2020, provided that the cutoff date procedures shall not be no more than two three business days prior to such Execution Time or the Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the lettercase may be.
(g) 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 Disclosure Package and the Prospectus (exclusive of any amendment or any supplement thereto)) and until the Closing Date, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial business or otherwise) or prospects properties of the CompanyCompany or its Subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus 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 RepresentativesRepresentative in its sole discretion, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Offering as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus.
(h) Subsequent to the date hereof and until the Closing Date, there shall not have been any decrease in the rating or outlook of any of the Company’s or any of its Subsidiaries’ 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 outlook or of a possible change in any such rating or outlook that does not indicate the direction of the possible change.
(i) For the period from and after effectiveness of this Agreement and prior to the Closing Date and, with respect to the Notes:
(i) the Company shall have filed the Prospectus with the Commission (including the information required by Rule 430A under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act;
(ii) the Final Term Sheet, and 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 under such Rule 433; and
(iii) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or threatened by the Commission; and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and
(iv) the NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The Underwriters shall have received a certificate of the Company, signed by each of the Company’s Chief Financial Officer and the Company’s Corporate Controller, dated the Closing Date, in form and substance satisfactory to the Underwriters, with respect to certain financial information contained in the Disclosure Package and the Prospectus or incorporated therein by reference.
(k) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives Underwriters such further information, certificates and documents as the Representatives Underwriters may reasonably request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(jl) The Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company QIU shall have delivered to a pricing letter substantially in the Representatives executed copies form of the Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the ActExhibit B hereto. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives 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 by the RepresentativesRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Ellenoff Xxxxxxxx & Xxxxxx Schole LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Executive Officer Officers and the its principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG Marchum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11May 24, 2019 (date of inception) through June 30, 20202019, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) On or prior to the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company, in form and substance satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate.
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New York Stock ExchangeNasdaq 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx 1211 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxEsq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Samples: Underwriting Agreement (Experience Investment Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Ellenoff Xxxxxxxx & Xxxxxx Schole LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Executive Officer Officers and the its principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11May 24, 2019 (date of inception) through June 30, 20202019, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(g) On or prior to the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company, in form and substance satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate.
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New York Stock ExchangeNasdaq 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx 1211 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxEsq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Samples: Underwriting Agreement (Experience Investment Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer contained herein as of the Execution Time, Time and the First Closing Date and any settlement date Option Closing Date pursuant to Section 3 2 hereof, to the accuracy of the statements of the Company 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)) under the Securities Act; any material required to be filed by the Issuer pursuant to Rule 433(d) under the Securities Act shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.;
(b) The Company Issuer shall have requested and caused Weil, Gotshal & Xxxxxx Xxxxxxx Procter LLP, U.S. counsel for the CompanyIssuer, to have furnished to the Representatives its opinions their opinion and negative assurance letter, each dated the First Closing Date or settlement date (as applicable) and addressed to the Representatives, and each in a form and substance reasonably acceptable satisfactory to the Representatives.;
(c) The Company Issuer shall have requested and caused Xxxxxx and CalderXxxx AG, Cayman Islands Swiss counsel for the CompanyIssuer, to have furnished to the Representatives its opinions their opinion, dated the First Closing Date and addressed to the Representatives, in a form and substance reasonably acceptable satisfactory to the Representatives;
(d) The Representatives shall have received from Ropes & Xxxx LLP, U.S. counsel for the Underwriters, such opinion or opinionstheir negative assurance letter, dated the First Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect in form and substance reasonably satisfactory 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 requireRepresentatives, and the Company Issuer shall have furnished to such counsel such any documents as they request for the purpose of enabling them to pass upon such matters.their negative assurance letter;
(e) The Company Issuer shall have requested and caused Xxxxxxxx, Gerstein & Borun LLP, intellectual property counsel for the Issuer, to have furnished to the Representatives its intellectual property opinion, dated the First Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives;
(f) The Representatives shall have received from Xxxxxxxxx XX, Swiss counsel for the Underwriters, their opinion, dated the First Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives, and the Issuer shall have furnished to such counsel any documents they request for the purpose of enabling them to pass their opinion upon any matters agreed with the Representatives;
(g) The Issuer shall have furnished to the Representatives a certificate of the CompanyIssuer, signed by the Chief Executive Officer or President and the principal financial or accounting officer of the CompanyIssuer, dated the First Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary ProspectusStatement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Underwriting Agreement and that:
(i) the representations and warranties of the Company Issuer in this Underwriting Agreement are true and correct on and as of the First Closing Date or settlement date (as applicable) with the same effect as if made on the First Closing Date or settlement date (as applicable) 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 the First Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the CompanyIssuer’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 Effectmaterial adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Issuer 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).;
(fh) The Company Issuer shall have requested and caused KPMG Ernst & Young LLP, independent registered public accounting firm for the Issuer, to have furnished to the Representatives, Representatives at the Execution Time and at the First Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the First Closing Date or settlement date (as applicable)Date, in form and substance reasonably satisfactory to the Representatives, and 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 and that they have performed an audit a review of the unaudited interim financial statements information of the Company Issuer for the three-month period from July 11ended March 31, 2019 (date of inception) through June 302020 and as at March 31, 2020, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:accordance with Statement on Auditing Standards No. 100;
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus ) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fh) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) ), earnings, business or prospects properties of the CompanyIssuer and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).;
(hj) Prior to the First Closing Date or settlement date (as applicable)and the Option Closing Date, the Company Issuer 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.
(jk) The Securities shall be duly have been listed subject to notice of issuance and admitted and authorized for trading on the New York Stock ExchangeThe Nasdaq Global Market, 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.;
(l) At least one Business Day prior the Execution Time, the Issuer shall have furnished to the Closing Date or settlement date (as applicable), Representatives a letter substantially in the Sponsor shall have caused form of Exhibit B hereto from each officer and director of the purchase price for Issuer and from certain specified holders of the Private Placement Warrants equity securities of the Issuer addressed to be deposited into the Trust Account.Representatives; and
(m) No order preventing or suspending On the sale First Closing Date, the Subsidiaries shall be subsidiaries of the Units Issuer as specified in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the ActProspectus. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Underwriting Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Underwriting Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Underwriting Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the First Closing Date by the Representatives. Notice of such cancellation shall be given to the Company Issuer and the Selling Shareholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx XxxxxxxxPrudential Tower, Xxx Xxxx000 Xxxxxxxx Xxxxxx, Xxx Xxxx Xxxxxx, XX 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein-0000, on the First Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the Company’s knowledge, threatened.
(b) The Company shall have requested and caused WeilXxxx, Gotshal Weiss, Rifkind, Xxxxxxx & Xxxxxx LLP, Xxxxxxxx LLP counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers (Cayman) LLP, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, or threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus 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 requested and caused KPMG Xxxxxx LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11March 1, 2019 2021 (date of inception) through June 30March 6, 20202021, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably requestrequest on or prior to three business days prior to the Closing Date.
(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 New York Stock ExchangeNYSE, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Dateeffective date of the Registration Statement, the Company shall have delivered to the Representatives executed copies of the Securities Assignment Trust Agreement, the Public Warrant Agreement, the Private Warrant Agreement, the Founder’s Purchase Agreement, the Forward Private Placement Warrant Purchase Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration and Shareholder Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants Portion to be deposited into the Trust Account.
(m) 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, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified and (iiii) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(n) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, at 0000 Xxx Xxxxxx xx xxx XxxxxxxxXxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Waverley Capital Acquisition Corp. 1)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Ellenoff Xxxxxxxx & Xxxxxx Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Executive Officer Officers and the its principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11October 2, 2019 2017 (date of inception) through June 30October 16, 20202017, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(ki) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(lj) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(mk) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxEsq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Additional Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx Xxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(c) The Company shall have requested and caused Xxxxxx and CalderCalder (Dubai) LLP, Cayman Islands counsel for the Company, to have furnished to the Representatives Representative its opinions dated the Closing Date and addressed to the RepresentativesRepresentative, in a form reasonably acceptable to the RepresentativesRepresentative.
(d) The Representatives Representative shall have received from Ropes Ellenoff Xxxxxxxx & Xxxx Schole LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory ProspectusGeneral Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus General Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG BDO to have furnished to the RepresentativesRepresentative, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the RepresentativesRepresentative, confirming that they are it is a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have it has performed (i) an audit of the financial statements of the Company for the period from July 11May 24, 2019 2021 (date of inception) through June 30July 31, 20202021, provided that the cutoff date shall not be more than two business days Business Days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused WeilMxXxxxxxx, Gotshal Will & Xxxxxx Exxxx LLP, U.S. counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a s form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx Mxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a the form reasonably acceptable to the Representativesattached as Exhibit A hereto.
(d) The Representatives shall have received from Ropes Skadden, Arps, Slate, Mxxxxxx & Xxxx Fxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable)Date, to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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, certifying (i) that the Amended and Restated Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(g) The Company shall have requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable)Date, letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable)Date, in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11June 26, 2019 2015 (date of inception) through June 30July 1, 20202015, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gh) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hi) Prior to the Closing Date or settlement date (as applicable)Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ij) 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 New York Stock ExchangeNasdaq 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Warrant Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies each of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(lm) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited wired to the Company and the Company shall direct the escrow agent to deposit such funds into the Trust 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 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Skadden, Arps, Slate, Mxxxxxx & Xxxx Fxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx300 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx XxxxXxxxxxx, Xxx Xxxx Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Double Eagle Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date or and any settlement date (date, as applicable), to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement such date (as applicable) with the same effect as if made on the Closing Date or settlement such date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)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 or under Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or and any settlement date (date, as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of April 20, 2021 and as of June 30, 2021 and for the period from July 11April 15, 2019 2021 (date of inception) through April 20, 2021 and for the period from April 15, 2021 (inception) through June 30, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or and any settlement date (date, as applicable), 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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement, the Administrative Services Agreement and the Registration Rights Investment Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date (date, as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii6(e)(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or shall have been threatened threatened.
(n) On or pursuant to Section 8A before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ActFinancial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxxx and Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Iconic Sports Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Vxxxxx & Xxxxxx LLPExxxxx L.L.P., counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes Weil, Gotshal & Xxxx Mxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused Walkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG WithumSmith + Bxxxx PC to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11June 5, 2019 2017 (date of inception) through June September 30, 20202017, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New York Stock ExchangeNasdaq 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 Securities Assignment Agreement, the Option Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Warrant Subscription Agreement, the Additional Forward Purchase AgreementsInsider Letter, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Weil, Gotshal & Xxxx Mxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx700 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Axxxxxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxx, unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Samples: Underwriting Agreement (Sentinel Energy Services Inc.)
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters of any Offered Securities under the Underwriting Agreement to purchase the Underwritten Offered 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 BVDC and BVAC contained herein as of the Execution Time, date hereof and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company BVDC and BVAC made in any certificates pursuant to the provisions hereof, to the performance by the Company BVDC and BVAC of its obligations hereunder and in the Transaction Documents and to the following additional conditionsconditions as of the Closing Date:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and, the Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) under the Act.
(b) The Company Underwriters shall have requested and caused Weil, Gotshal & Xxxxxx received from Patton Boggs LLP, counsel for BVDC and BVAC and such other counsexx xxxixxxx in the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably appropriate jurisdictions acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or favorable opinions, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters. Such opinions (a) may express reliance as to factual matters on the representations and warranties made by, and on certificates or settlement date (as applicable) and addressed other documents furnished by, officers of the parties to the RepresentativesTransaction Documents, (b) may assume the due authorization, execution, and delivery of the instruments and documents referred to therein by the parties thereto other than BVAC and BVDC and their respective affiliates, and (c) to the extent such opinion relates to law other than the laws of the State of New York and the federal laws of the United States, may rely on a favorable opinion of local counsel satisfactory to the Underwriters, dated the Closing Date, and satisfactory in form and substance to counsel for the Underwriters.
(c) Patton Boggs LLP and/or such other counsels will also deliver opixxxxx tx xxx Underwriters, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters with respect to certain insolvency and Uniform Commercial Code and true sale matters.
(d) For each State for which the Receivables constitute 10% or more of the initial principal balance of a Receivables included in the Trust Property, the Underwriters shall have received from legal counsel to BVDC admitted in the appropriate jurisdictions acceptable to the Underwriters, favorable opinions, dated the Closing Date and satisfactory in form and substance to the counsel for the Underwriters.
(e) The Underwriters shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters, with respect to the issuance and sale of the Securities, certain matters with respect to the Registration Statement, the Statutory Prospectus, Statement and the Prospectus (together with any supplement thereto) and such other related matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company Underwriters shall have furnished received on the Closing Date, addressed to the Representatives a certificate Underwriters and dated the Closing Date, any opinion delivered to the rating agency or credit enhancer in connection with its rating of the CompanyOffered Securities.
(g) The Underwriters shall have received from counsel for the Trustee, signed by a favorable opinion dated the Chief Executive Officer Closing Date and satisfactory in form and substance to counsel for the principal financial or accounting officer of Underwriters, to the Companyeffect set forth in Exhibit A.
(h) The Underwriters shall have received a favorable opinion addressed to the Underwriters from counsel for the third party credit enhancer, if any, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters.
(i) The Offered Securities shall be rated in the highest category by a nationally recognized rating agency or settlement date such other category as shall be designated in the Underwriting Agreement and the Underwriters shall have received copies of letters to that effect. Further, subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate the direction of a possible change, in the rating accorded (i) the Offered Securities by any nationally recognized rating agency which rates the Offered Securities, (ii) any rated debt instrument issued by BVDC or (iii) any rated debt instrument issued by the third party credit enhancer, if any.
(j) BVDC and BVAC will enter into each Transaction Document to which it is a party at or before the Closing Date and, when delivered by BVDC and BVAC as applicable)the case may be, each such Transaction Document will have been duly authorized, executed, and delivered by such entity and will constitute the legal, valid, and binding agreement of such entity.
(k) Each of BVAC and BVDC shall have delivered to the Underwriters a certificate, dated the Closing Date, of the President or a Vice President to the effect that the signers signer of such certificate have has carefully examined each Transaction Document and to the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and effect that:
: (i) the representations and warranties of the Company such entity contained in this Agreement such agreements are true and correct on current in all material respects at and as of the Closing Date or settlement date (as applicable) with the same effect as if made on at the Closing Date or settlement date Date, (as applicableii) and the Company such entity has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date Date, (as applicable);
(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 such entity's knowledge threatened, (iv) there shall have been no material adverse change in the Company’s knowledgecondition of such entity, threatened; andfrom that set forth in the Registration Statement, (v) nothing has come to his attention that would lead him to believe that the Prospectus or Registration Statement contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) such entity has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its organization with corporate and other power and authority to own its properties and conduct its business, as now conducted by it, and to enter into and perform its obligations under each Transaction Document, (vii) each Transaction Document has been duly authorized, executed, and delivered by such entity, (viii) the fulfillment of the terms of each Transaction Document will not constitute a material breach of any term or provision of the charter or by-laws of such entity, or conflict with or constitute a material breach, violation, or acceleration of or a default under, the terms of any indenture or other material agreement or instrument to which such entity is a party, and (ix) such entity is not a party to, bound by, or in breach or violation of any indenture or other material agreement or instrument, or subject to or in violation of any statute, regulation, or order of any governmental body, administrative agency, regulatory body, or court having jurisdiction over such entity, that materially and adversely affects or would in the future materially and adversely affect the ability of such entity to perform its obligations under any Transaction Document to which it is a party or the business, operations, or financial condition or the material properties or assets of such entity.
(iiil) since The Underwriters shall have received from independent accountants of BVDC, one or two letters, one such letter dated the date of the most recent financial statements included Prospectus relating to such Offered Securities and satisfactory in the Statutory Prospectus form 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 requested and caused KPMG to have furnished substance to the RepresentativesUnderwriters and counsel for the Underwriters, at the Execution Time and at a second letter, if necessary, dated the Closing Date or settlement date (Date, as applicable), letters, dated respectively to such matters as of the Execution Time and as of the Closing Date or settlement date (as applicable), Underwriters may reasonably request in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect Underwriter and counsel to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020Underwriters, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountBVDC.
(m) No order preventing or suspending All proceedings in connection with the sale of the Units in any jurisdiction designated transactions contemplated by the Representatives pursuant to Section 5(ii) hereof Offered Securities, each Transaction Document and all documents incident hereto or thereto shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, and counsel for the UnderwritersUnderwriters shall have received such information, at 0000 Xxxxxx xx xxx Xxxxxxxxcertificates, Xxx Xxxxopinions, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on documents as the Closing DateUnderwriters may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters of any Offered Securities under the Underwriting Agreement to purchase the Underwritten Offered 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 BVDC and BVAC contained herein as of the Execution Time, date hereof and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company BVDC and BVAC made in any certificates pursuant to the provisions hereof, to the performance by the Company BVDC and BVAC of its obligations hereunder and in the Transaction Documents and to the following additional conditionsconditions as of the Closing Date:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and, the Prospectus shall have been timely filed with the Commission pursuant to Rule 424(b) under the Act.
(b) The Company Underwriters shall have requested and caused Weil, Gotshal & Xxxxxx received from Patton Boggs LLP, counsel for BVDC and BVAC and such other cxxxxxxs xxxxtted in the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably appropriate jurisdictions acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or favorable opinions, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters. Such opinions (a) may express reliance as to factual matters on the representations and warranties made by, and on certificates or settlement date (as applicable) and addressed other documents furnished by, officers of the parties to the RepresentativesTransaction Documents, (b) may assume the due authorization, execution, and delivery of the instruments and documents referred to therein by the parties thereto other than BVAC and BVDC and their respective affiliates, and (c) to the extent such opinion relates to law other than the laws of the State of New York and the federal laws of the United States, may rely on a favorable opinion of local counsel satisfactory to the Underwriters, dated the Closing Date, and satisfactory in form and substance to counsel for the Underwriters.
(c) Patton Boggs LLP and/or such other counsels will also delivex xxxxixxx xo the Underwriters, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters with respect to certain insolvency and Uniform Commercial Code and true sale matters.
(d) For each State for which the Receivables constitute 10% or more of the initial principal balance of a Receivables included in the Trust Property, the Underwriters shall have received from legal counsel to BVDC admitted in the appropriate jurisdictions acceptable to the Underwriters, favorable opinions, dated the Closing Date and satisfactory in form and substance to the counsel for the Underwriters.
(e) The Underwriters shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters, with respect to the issuance and sale of the Securities, certain matters with respect to the Registration Statement, the Statutory Prospectus, Statement and the Prospectus (together with any supplement thereto) and such other related matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(ef) The Company Underwriters shall have furnished received on the Closing Date, addressed to the Representatives a certificate Underwriters and dated the Closing Date, any opinion delivered to the rating agency or credit enhancer in connection with its rating of the CompanyOffered Securities.
(g) The Underwriters shall have received from counsel for the Trustee, signed by a favorable opinion dated the Chief Executive Officer Closing Date and satisfactory in form and substance to counsel for the principal financial or accounting officer of Underwriters, to the Companyeffect set forth in Exhibit A.
(h) The Underwriters shall have received a favorable opinion addressed to the Underwriters from counsel for the third party credit enhancer, if any, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters.
(i) The Offered Securities shall be rated in the highest category by a nationally recognized rating agency or settlement date such other category as shall be designated in the Underwriting Agreement and the Underwriters shall have received copies of letters to that effect. Further, subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate the direction of a possible change, in the rating accorded (i) the Offered Securities by any nationally recognized rating agency which rates the Offered Securities, (ii) any rated debt instrument issued by BVDC or (iii) any rated debt instrument issued by the third party credit enhancer, if any.
(j) BVDC and BVAC will enter into each Transaction Document to which it is a party at or before the Closing Date and, when delivered by BVDC and BVAC as applicable)the case may be, each such Transaction Document will have been duly authorized, executed, and delivered by such entity and will constitute the legal, valid, and binding agreement of such entity.
(k) Each of BVAC and BVDC shall have delivered to the Underwriters a certificate, dated the Closing Date, of the President or a Vice President to the effect that the signers signer of such certificate have has carefully examined each Transaction Document and to the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and effect that:
: (i) the representations and warranties of the Company such entity contained in this Agreement such agreements are true and correct on current in all material respects at and as of the Closing Date or settlement date (as applicable) with the same effect as if made on at the Closing Date or settlement date Date, (as applicableii) and the Company such entity has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date Date, (as applicable);
(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 such entity's knowledge threatened, (iv) there shall have been no material adverse change in the Company’s knowledgecondition of such entity, threatened; andfrom that set forth in the Registration Statement, (v) nothing has come to his attention that would lead him to believe that the Prospectus or Registration Statement contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) such entity has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its organization with corporate and other power and authority to own its properties and conduct its business, as now conducted by it, and to enter into and perform its obligations under each Transaction Document, (vii) each Transaction Document has been duly authorized, executed, and delivered by such entity, (viii) the fulfillment of the terms of each Transaction Document will not constitute a material breach of any term or provision of the charter or by-laws of such entity, or conflict with or constitute a material breach, violation, or acceleration of or a default under, the terms of any indenture or other material agreement or instrument to which such entity is a party, and (ix) such entity is not a party to, bound by, or in breach or violation of any indenture or other material agreement or instrument, or subject to or in violation of any statute, regulation, or order of any governmental body, administrative agency, regulatory body, or court having jurisdiction over such entity, that materially and adversely affects or would in the future materially and adversely affect the ability of such entity to perform its obligations under any Transaction Document to which it is a party or the business, operations, or financial condition or the material properties or assets of such entity.
(iiil) since The Underwriters shall have received from independent accountants of BVDC, one or two letters, one such letter dated the date of the most recent financial statements included Prospectus relating to such Offered Securities and satisfactory in the Statutory Prospectus form 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 requested and caused KPMG to have furnished substance to the RepresentativesUnderwriters and counsel for the Underwriters, at the Execution Time and at a second letter, if necessary, dated the Closing Date or settlement date (Date, as applicable), letters, dated respectively to such matters as of the Execution Time and as of the Closing Date or settlement date (as applicable), Underwriters may reasonably request in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect Underwriter and counsel to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11, 2019 (date of inception) through June 30, 2020Underwriters, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust AccountBVDC.
(m) No order preventing or suspending All proceedings in connection with the sale of the Units in any jurisdiction designated transactions contemplated by the Representatives pursuant to Section 5(ii) hereof Offered Securities, each Transaction Document and all documents incident hereto or thereto shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, and counsel for the UnderwritersUnderwriters shall have received such information, at 0000 Xxxxxx xx xxx Xxxxxxxxcertificates, Xxx Xxxxopinions, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on documents as the Closing DateUnderwriters may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Kxxxxxxx & Xxxxxx Exxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Sxxxxxx Xxxxxxx & Xxxx Bxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date or and any settlement date (date, as applicable), to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement such date (as applicable) with the same effect as if made on the Closing Date or settlement such date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)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 or under Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG Mxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or and any settlement date (date, as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of April 20, 2021 and as of June 30, 2021 and for the period from July 11April 15, 2019 2021 (date of inception) through April 20, 2021 and for the period from April 15, 2021 (inception) through June 30, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or and any settlement date (date, as applicable), 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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement and the Registration Rights Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date (date, as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii6(e)(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or shall have been threatened threatened.
(n) On or pursuant to Section 8A before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ActFinancial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Sxxxxxx Xxxxxxx & Xxxx Bxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Bxxxx X. Xxxxx Xxxxxxxxxx and Xxxxxxxxxxx X. XxxxxxxMxxx Xxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Iconic Sports Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxxxx & Xxxxxx Xxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions and negative assurance letter, each dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderWalkers, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(d) The Representatives shall have received from Ropes Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsopinions and negative assurance letter, each dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Financial Officer and the principal financial or accounting officer of the Company, dated the Closing Date or and any settlement date (date, as applicable), to the effect that the signers signer of such certificate have has carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement such date (as applicable) with the same effect as if made on the Closing Date or settlement such date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)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 or under Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG Xxxxxx to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or and any settlement date (date, as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company as of April 20, 2021 and as of June 30, 2021 and for the period from July 11April 15, 2019 2021 (date of inception) through April 20, 2021 and for the period from April 15, 2021 (inception) through June 30, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or and any settlement date (date, as applicable), 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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver shall have delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters Letter, the Registration and Shareholder Rights Agreement, and the Registration Rights Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date (date, as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii6(e)(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose or under Section 8A of the Securities Act shall have been instituted or shall have been threatened threatened.
(n) On or pursuant to Section 8A before the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the ActFinancial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes Xxxxxxx Xxxxxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxxx and Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Iconic Sports Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Ellenoff Xxxxxxxx & Xxxxxx Schole LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the 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.
(ed) The Company shall have furnished to the Representatives a certificate of the Company, signed by the one of its Chief Executive Officer Officers and the its principal financial or accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(fe) The Company shall have requested and caused KPMG WithumSmith to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11October 2, 2019 2017 (date of inception) through June 30October 16, 20202017, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (fe) include any supplement thereto at the date of the letter.
(gf) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (fe) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(hg) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(ih) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(ji) The Securities shall be duly listed subject to notice of issuance on the New York Stock ExchangeNasdaq Capital Market, satisfactory evidence of which shall have been provided to the Representatives.
(ki) On the Effective Date, the Company shall have delivered to the Representatives executed copies of the Trust Agreement, Securities Assignment Agreements, the Warrant Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters Letter and the Registration Rights Agreement.
(lj) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor Company shall have caused the applicable purchase price for the Private Placement Warrants to be deposited into the Trust Account.
(mk) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx Freshfields Bruckhaus Xxxxxxxx US LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxEsq., unless otherwise indicated herein, on the Closing DateDate or settlement date (as applicable).
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or and any settlement date (date, as applicable) , and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and Calder, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives. Credit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, Inc. [●], 2021
(d) The Representatives shall have received from Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or and any settlement date (date, as applicable), and to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable)Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to 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 requested and caused KPMG Withum to have furnished to the Representatives, at the Execution Time and at the Closing Date or and any settlement date (date, as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or and any settlement date (date, as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit a review of the audited financial statements of the Company for the period from July 11January 5, 2019 2021 (date of inception) through June 30January 5, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement dateDate, 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; andand Credit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, Inc. [●], 2021
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or and any settlement date (date, as applicable), 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 New 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 Securities Assignment Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Forward Purchase Agreement, the Additional Forward Purchase AgreementsInsider Letters, the Warrant Subscription Registration Rights Agreement and the Administrative Services Agreement. On or prior to the Closing DateCredit Suisse Securities (USA) LLC X.X. Xxxxxx Securities LLC BofA Securities, the Company will deliver to the Representatives executed copies of the Trust AgreementInc. [●], the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.2021
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable)Date, the Sponsor Cannae Holdings shall have caused the purchase price for the Private Placement 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 5(ii5(hh) hereof shall have been issued as of the Closing Date or settlement date (as applicable)Date, and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Actthreatened. 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 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 electronically, or if by mail, at the office of Ropes Xxxxx Xxxx & Xxxx Xxxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx X. Xxxxx and Xxxxxxxxxxx X. XxxxxxxXxxxxx, Esq., unless otherwise indicated herein, on the Closing DateDate and any settlement date, as applicable.
Appears in 1 contract
Samples: Underwriting Agreement (Austerlitz Acquisition Corp II)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Weil, Gotshal Xxxxxx & Xxxxxx Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Company shall have requested and caused Xxxxxx and CalderXxxxxx (Cayman) LLP, Cayman Islands counsel for the Company, to have furnished to the Representatives its opinions dated the Closing Date and addressed to the Representatives, in a form reasonably acceptable to the Representatives
(d) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or settlement date (as applicable) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(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 accounting officer of the Company, dated the Closing Date or settlement date (as applicable), to the effect that the signers of such certificate have carefully examined the Registration Statement each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or settlement date (as applicable) with the same effect as if made on the Closing Date or settlement date (as applicable) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or settlement date (as applicable);
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG to have furnished to the Representatives, at the Execution Time and at the Closing Date or settlement date (as applicable), letters, dated respectively as of the Execution Time and as of the Closing Date or settlement date (as applicable), in form and substance satisfactory to the Representatives, confirming that they are a registered public accounting firm that is independent with respect to the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed an audit of the financial statements of the Company for the period from July 11April 12, 2019 2021 (date of inception) through June 30May 3, 20202021, provided that the cutoff date shall not be more than two business days prior to such Execution Time or Closing Date or settlement date, as applicable, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, including the information set forth under the captions “Dilution” and “Capitalization” in the Statutory Prospectus and the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date or settlement date (as applicable), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(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 New 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 Securities Assignment Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreement, the Additional Forward Purchase Agreements, the Warrant Subscription Agreement and the Administrative Services Agreement. On or prior to the Closing Date, the Company will deliver to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Insider Letters and the Registration Rights Agreement.
(l) At least one Business Day prior to the Closing Date or settlement date (as applicable), the Sponsor shall have caused the purchase price for the Private Placement 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 5(ii) hereof shall have been issued as of the Closing Date or settlement date (as applicable), and no proceedings for that purpose shall have been instituted or shall have been threatened or pursuant to Section 8A of the Act. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & Xxxx LLP, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx and Xxxxxxxxxxx X. Xxxxxxx, unless otherwise indicated herein, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (AfterNext HealthTech Acquisition Corp.)
