Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date. (c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that: (i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors. (iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 2 contracts
Samples: Underwriting Agreement (Tripath Technology Inc), Underwriting Agreement (Tripath Technology Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Company, the Manager and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company Company, the Manager and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company Company, the Manager and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx & Xxxxxx, Professional CorporationLLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified effect set forth in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateExhibit D hereto.
(c) The Company shall have requested and caused Xxxxxxx LLP, Maryland counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Exhibit E hereto.
(d) The Company shall have requested and caused Hunton & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their opinion with respect to certain tax matters, dated the Closing Date and addressed to the Representatives, to the effect set forth in Exhibit F hereto.
(e) The Company shall have requested and caused Hunton & Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in Exhibit G hereto.
(f) The Representatives shall have received from Xxxxxxx Xxxxxxx Sidley Xxxxxx Xxxxx & Xxxxxxxx Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Company, the Manager and each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, counsel for the Underwriters may rely, as to all matters arising under or governed by the laws of the State of Maryland, on the opinion of Xxxxxxx LLP delivered pursuant to Section 6(c) above.
(dg) The Company and the Manager shall have furnished to the Representatives a certificate of the Company and the Manager, signed by the chief executive officer and chief financial officer of the Company and chief executive officer and chief financial officer of the Manager, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and certifying, jointly and severally, that:
(i) the representations and warranties of the Company and 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 and the Company and the Manager have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the signers of such certificate, threatened; and
(iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(h) The Selling Stockholders shall have furnished to the Representatives a certificate, signed by an Attorney-in-Fact on behalf of each of the Selling Stockholders, to the effect that each Selling Stockholder, severally and not jointly, certifies that such Selling Stockholder has carefully examined (i) the information relating to such Selling Stockholder contained in the Registration Statement, the Prospectus and any supplement to the Prospectus and (ii) this Agreement and that the representations and warranties of such Selling Stockholder 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.
(i) The Company shall have requested and caused both Xxxxxxxx Deloitte & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Touche LLP to have furnished to the Representatives their opinionletters, at the Execution Time and at the Closing Date, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, to the effect set forth in Exhibit H hereto.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Prospectus (exclusive of any supplement thereto).
(k) Prior to the Closing Date, the Company, the Manager and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(l) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(m) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(n) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each person and entities listed in Sections (B), (C) and (D) of Exhibit C hereto and a letter substantially in the form of Exhibit B hereto from each of the persons and entities listed in Section (A) of Exhibit C hereto.
(o) The Company shall have furnished to the Representatives copies of the executed Management Agreement, License Agreement and the Side Agreement. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates 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 and addressed by the Representatives. Notice of such cancellation shall be given to the Representatives Company and the Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the effect that:
(i) As to office of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counselUnderwriters, at the time the Registration Statement became effective and at all times subsequent thereto up to and 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000, on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsDate.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
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 in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any 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:Company
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx furnished to the Representatives the opinion of O'Coxxxx, Xxvanagh, Anderson, Killxxxxxxxxx & XxxxxxXeshxxxx, Professional CorporationX.A., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to each of the statements Company and its Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement jurisdiction in which it is chartered or organized, with the requisite corporate power and any amendment authority to own or supplement thereto made available lease, as the case may be, and reviewed by to operate its properties and conduct its business as described in the Prospectus, and has the requisite authority to operate its boat dealership business under dealership agreements and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction set forth on a schedule to such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingopinion;
(ii) Such counsel knows all the outstanding shares of no material actioncapital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, suitand, claim or proceeding relating to patentsexcept as otherwise set forth in the Prospectus, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, all outstanding shares of capital stock of the Subsidiaries are owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or affecting encumbrance;
(iii) the business or operations Mergers of the Company which are pending and the Subsidiaries as described in the Prospectus have been completed and do not constitute any violation of any material contracts, agreements or threatened against other obligations of any of the Company or any of its officers Subsidiaries, and all the necessary consents or directorswaivers have been obtained for the Mergers.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.;
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Meitar Liquornik Geva & XxxxxxLeshem Xxxxxxxxx, Professional Corporation, Israeli counsel for the Company, to have furnished to the Representatives their opinion, opinion dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to Each of the statements Company and TwinSys Limited, TwinSys Data Storage Limited Partnership, Flash Holdings Ltd., Eurom Flashware Solutions Ltd., Smart Caps Ltd. and MegaSIM Ltd. (the "Israeli Subsidiaries") has been duly organized and is validly existing as a company under the captions "Risk Factors-- Our intellectual property laws of Israel, with full corporate power and proprietary rights authority to own or lease, as the case may be insufficient be, and to protect our competitive position" operate its properties and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to conduct its business as described in the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;Final Prospectus.
(ii) Such counsel knows All of no material actionthe outstanding shares of capital stock or partnership interests of each Israeli Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, suitand, claim except as set forth in the Final Prospectus or proceeding relating to patentson Schedule I hereto, patent rights all outstanding shares of capital stock or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, partnership interests of the Israeli Subsidiaries that are owned by or affecting the business or operations of the Company which either directly or through wholly owned subsidiaries are pending free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or threatened against the Company or any of its officers or directorsencumbrance.
(iii) The Company Company's authorized equity capitalization is listed as set forth in the records Final Prospectus; the capital stock of the United States Patent Company conforms in all material respects to the description thereof contained in the Final Prospectus; the outstanding Ordinary Shares have been duly and Trademark Office as validly authorized and issued and are fully paid and nonassessable and, to the holder best of record such counsel's knowledge, no outstanding Ordinary Shares were issued in the seven years immediately prior to the date hereof in violation of any preemptive or other similar right; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the holders of outstanding shares of capital stock of the patents listed on a schedule Company are not entitled under any law, and, to the best of such opinion counsel's knowledge, under any contracts, to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding.
(the "Patents"iv) and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims material pending legal proceedings, to which the Company or its property is subject which are not adequately disclosed in the Final Prospectus (exclusive of third parties any supplement thereto), and to any ownership interest such counsel's knowledge, there is no material franchise, contract or lien with respect to any other document which has been entered into or executed by the Company other than in the ordinary course of the Patents or Applications. Such counsel business which is not aware described in the Final Prospectus (exclusive of any material defect in form supplement thereto); and the statements in the preparation or filing Final Prospectus under the heading "Management's Discussion and Analysis of Financial Condition and Results of Operation -- Taxation", "Material Israeli Tax Considerations", "Share Ownership -- Revisions to the Applications on behalf Tax Ordinance", "Description of Securities", "Taxation" (except "-- United States Federal Income Tax Considerations"), "Memorandum and Articles of Association" and "Enforceability of Civil Liabilities" fairly summarize the Company. To the knowledge of such counsel, the Applications are being pursued by thematters therein described.
Appears in 1 contract
Samples: Underwriting Agreement (M-Systems Flash Disk Pioneers 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 and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationGodward LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance approved by Citigroup Global Markets Inc. and substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified set forth in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateExhibit B hereto.
(c) The Company shall have requested and caused Xxxxxx Xxxx & Priest LLP, counsel for the Company with respect to patents and proprietary rights, to have furnished to the Representatives their opinion, dated the Closing Date, and addressed to the Representatives, in form and substance approved by Citigroup Global Markets Inc. and substantially the form set forth in Exhibit C hereto.
(d) The Company shall have requested and caused Xxxxx, Xxxxxx & XxXxxxxx, P.C., counsel for the Company with respect to regulatory matters, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance approved by Citigroup Global Markets Inc. and substantially the form set forth in Exhibit D hereto.
(e) The Selling Stockholder shall have requested and caused Xxxxxx Godward LLP, special counsel for the Selling Stockholder, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, in form and substance approved by Citigroup Global Markets Inc. and substantially in the form set forth in Exhibit E hereto.
(f) The Representatives shall have received from Xxxxxxx Xxxxxxx King & Xxxxxxxx Spalding LLP, special counsel for the Underwriters with respect to patents and proprietary rights, such opinion(s) or letter(s), dated the Closing Date and addressed to the Representatives, as the Representatives may require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as such counsel requests for the purpose of enabling it deliver such opinion(s) or letter(s).
(g) The Representatives shall have received from Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request Xxxxx Xxxxxxxxxx LLP requests for the purpose of enabling them it to pass upon such matters.
(dh) The Company shall have furnished to the Representatives a certificate of the Company, signed by the principal executive officer of the Company and by the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(i) The Selling Stockholder shall have furnished to the Representatives a certificate, signed by the Selling Stockholder, dated the Closing Date, to the effect that the signer of such certificate has examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement, that the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date to the same effect as if made on the Closing Date and that and the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(j) The Company shall have requested and caused both Xxxxxxxx Ernst & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Young LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representatives to Representatives, confirming that they are independent registered public accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended September 30, 2004, and as at September 30, 2004, in accordance with procedures specified by the PCAOB for a review of interim financial information as described in AU Section 722, Interim Financial Information, and stating in effect that:
(i) As in their opinion the audited financial statements included in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, completed in accordance with the procedures specified by the PCAOB for a review of interim financial information as described in AU Section 722, Interim Financial Information, of the unaudited interim financial information for the nine-month period ended September 30, 2004, and as at September 30, 2004; 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 statements under comments set forth in such letter; a reading of the captions "Risk Factors-- Our intellectual property minutes of the meetings of the stockholders and proprietary rights may be insufficient the board of directors (including committees thereof) of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to protect our competitive position" transactions and "--We may be subject events subsequent to intellectual property rights disputes which could divert management's September 30, 2004, nothing came to their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of that:
(A) any unaudited financial statements included in the Registration Statement and any amendment or supplement thereto made available the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and reviewed with the related rules and regulations adopted by such counsel, at the time Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingProspectus;
(iiB) Such counsel knows of no material action, suit, claim or proceeding relating at a specified date not more than five days prior to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations date of the Company letter, there was any change in the capital stock, increase in long-term debt or decrease in net current assets or stockholders’ equity of the Company, as compared with amounts shown in the September 30, 2004 unaudited consolidated balance sheet included in the Registration Statement and the Prospectus, or for the period from October 1, 2004 to such specified date there were any decreases, as compared to the corresponding period in the preceding year, in consolidated net sales or in the total or per-share amounts of income before extraordinary items or of net income, except in all instances for changes or decreases set forth in such letter, in which are pending or threatened against case the letter shall be accompanied by an explanation by the Company or any of its officers or directors.as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent Company and Trademark Office its subsidiaries) set forth in the Registration Statement and the Prospectus, including the information set forth under the captions “Summary—The Offering,” “Summary—Summary Financial Data,” “Use of Proceeds,” “Capitalization,” “Dilution,” “Selected Consolidated Financial Data,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Management” and “Certain Transactions” in the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation.
(k) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) 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 Section 6(j) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Prospectus (exclusive of any supplement thereto).
(l) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Representatives such further information, certificates and documents as the holder of record of Representatives may reasonably request.
(m) Subsequent to the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselExecution Time, there are no claims shall not have been any decrease in the rating of third parties to any ownership interest or lien with respect to any of the Patents Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Applications. Such counsel is not aware any notice given of any material defect intended or potential decrease in form any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(n) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(o) At the Execution Time, the Company shall have furnished to the Representatives a letter (a “Lock-Up Letter”) substantially in the preparation or filing form of the Applications on behalf Exhibit A hereto (with such changes as may be approved by Citigroup Global Markets Inc.) from (i) each officer and director of the Company; and (ii) holders of substantially all of the outstanding shares of Common Stock (treating, for purposes of this Section 6(o), each holder of any security convertible into or exercisable or exchangeable for shares of Common Stock or any warrant or other right to acquire shares of Common Stock or any such security as a holder of the shares of Common Stock underlying such security, warrant or right, and treating as outstanding, for purposes of this Section 6(o), each share of Common Stock underlying any such security, warrant or right).
(p) All outstanding shares of the Company’s Preferred Stock, $0.001 par value per share (the “Preferred Stock”), shall have converted into the number of shares of Common Stock, and shall have converted in the manner, set forth in the Registration Statement and the Prospectus; the Company shall have duly effected and completed a 0.42-for-1 reverse stock split of the Common Stock and the Preferred Stock in the manner set forth in the Registration Statement and the Prospectus; the Amended and Restated Certificate of Incorporation of the Company and the Amended and Restated Bylaws of the Company, each in the form filed as an exhibit to the Registration Statement, shall have been duly authorized and approved in accordance with the Delaware General Corporation Law and shall have become, or, concurrently with the closing of the sale of the Underwritten Securities to the Underwriters pursuant to this Agreement, shall become, effective and in full force and effect. To If any of the knowledge 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 counselcancellation shall be given to the Company and the Selling Stockholder in the manner prescribed by Section 12 hereof. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxxxxxxxx LLP, counsel for the Applications are being pursued by theUnderwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Skadden, Arps, Slate, Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationXxxx LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto set forth in Exhibit B:
(c) Each of the Selling Stockholders shall have requested and caused its counsel set forth in Schedule III to have furnished to the Representatives its opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and Power of Attorney has have been duly authorized, executed and delivered by the Selling Stockholders, the Custody Agreement is valid and binding on the Selling Stockholders and each Selling Stockholder has full legal right and authority to sell, transfer and deliver in the manner provided in this Agreement and the Custody Agreement the Securities being sold by such Selling Stockholder hereunder;
(ii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by any Selling Stockholder of the transactions contemplated herein, except such as EXHIBIT A. may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iii) neither the sale of the Securities being sold by any Selling Stockholder nor the consummation of any other of the transactions herein contemplated by any Selling Stockholder or the fulfillment of the terms hereof by any Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or, if applicable, the charter or by-laws of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which any Selling Stockholder or, if applicable, any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to any Selling Stockholder or, if applicable, any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any Selling Stockholder or, if applicable, any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State state of Delaware incorporation of such Selling Stockholder or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company Selling Stockholders and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(cd) The Representatives shall have received from Xxxxxxx Xxxxxxx Cravath, Xxxxxx & Xxxxxxxx LLPXxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder, or the Selling Stockholder himself or herself, if a natural person, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Company shall have requested and caused both PricewaterhouseCoopers LLP to have furnished to the Representatives letters, at the Execution Time and at the Closing Date, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, in the form of Exhibit C. In addition, at the Closing Date, Xxxxxx, Xxxxx & Co. L.L.C. and Xxxxxxx, Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLPLLP shall have furnished to the Representatives letters dated as of the Closing Date in form and substance reasonably satisfactory to the Representatives. References to the Prospectus in this Section 6(g) include any amendment or supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, intellectual property counsels for if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company 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 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 impracticable or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Company shall have requested and caused Xxxxxxxx, Xxxxxxxxxx, Xxxxxxx & Xxxxxxx, special telecommunications regulatory counsel to the Company, to have furnished to the Representatives their opinion, opinion dated the Closing Date and addressed to the Representatives Representatives, substantially to the effect that:
(i) As statements regarding telecommunications regulatory matters included in the Prospectus under the headings "Risk Factors--Risks Related to the statements under Relationships with Sprint PCS--If Sprint PCS does not maintain control over its licensed spectrum, the captions "Risk Factors-- Our intellectual property and proprietary rights affiliation agreements with Sprint PCS may be insufficient to protect our competitive positionterminated" and "--We --The FCC may be subject fail to intellectual property rights disputes renew the Sprint PCS licenses under certain circumstances, which could divert management's attention and could be costlywould prevent us from providing wireless services" and "Business-- Intellectual Property,Regulatory Environment" nothing has come to are accurate in all material respects and fairly summarize the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated matters therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingdescribed;
(ii) Such counsel knows no filing with, or authorization, approval, consent, license, permit, order, registration, qualification or decree of, the FCC or of no any other federal regulatory agency, is necessary or required for the due authorization, execution or delivery by the Company of this Agreement or for the performance by the Company of the transactions contemplated under the Prospectus or this Agreement; specifically, that the Company and its subsidiaries have the right to operate a wireless PCS network utilizing the spectrum licenses issued by the FCC and held by Sprint Corporation or the PCS Group of Sprint without the need to acquire any further order, license, permit or other authorization from the FCC or any other federal regulatory agency;
(iii) to such counsel's knowledge, neither the Company nor any of its subsidiaries is in violation of, or in default under, any federal telecommunications laws or regulations, the effect of which, singly or in the aggregate, would have a material actionadverse effect on the condition (financial or otherwise), suitprospects, claim earnings, business or proceeding relating properties of the Company; specifically, that the arrangement contained in the Management Agreements (as defined in the Prospectus) between the Company and the PCS Group of Sprint Corporation permitting the Company to patentsconstruct and operate a wireless PCS network utilizing the spectrum licenses issued by the FCC and held by Sprint Corporation or the PCS Group of Sprint, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniquesis in compliance with all applicable federal telecommunications rules and regulations, including processes federal rules and substances, owned by or affecting the business or operations regulations regarding licensee control of the Company which are pending licensed spectrum; and
(iv) to such counsel's knowledge, (A) no unsatisfied decree or threatened order of the FCC is outstanding against the Company or its subsidiaries and (B) with regard to the Company's and its Subsidiaries' construction and operation of a wireless PCS network, no litigation, proceeding, inquiry or investigation has been commenced or threatened, no complaints filed, no notice of violation or order to show cause has been issued, against the Company or its Subsidiaries or against Sprint Corporation or the PCS Group of Sprint Corporation before or by the FCC or any other federal regulatory agency which would have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its officers or directorssubsidiaries taken as a whole.
(iiik) The Company is listed Subsequent to the Execution Time, there shall not have been any decrease in the records rating of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or Applications. Such counsel is not aware any notice given of any material defect intended or potential decrease in form any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) The Common Stock shall continue to be listed and included and authorized for quotation on the Nasdaq National Market.
(m) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the preparation or filing form of Exhibit A hereto addressed to the Representatives from each officer and director of the Applications on behalf Company and each person that is a direct or indirect beneficial owner of one million or more shares of the Company. To the knowledge 's Common Stock other than (i) persons who disclaim beneficial ownership of such counsel, the Applications are being pursued by theshares and whose beneficial ownership not counting disclaimed shares is less than one million shares and (ii) Xx.
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 Subsidiary Guarantors contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Subsidiary Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Subsidiary Guarantors of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Akerman, Senterfitt & XxxxxxEidson, Professional CorporationP.A., counsel for the Company, to have furnished to the Representatives txx Xxxresentatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements Company has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement State of Delaware, with full corporate power and any amendment authority to own or supplement thereto made available lease, as the case may be, and reviewed by to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such counselqualification, at except where the time the Registration Statement became effective and at all times subsequent thereto up failure so to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of qualify does not have a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingMaterial Adverse Effect;
(ii) Such counsel knows each of the Subsidiaries (other than Aviation Sales Company FSC, Ltd., a Barbados corporation which has no material actionoperations or assets) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, suitwith full corporate power and authority to own or lease, claim as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure so to qualify does not have a Material Adverse Effect; and all the outstanding shares of capital stock of each of the Subsidiaries (other than Aviation Sales Company FSC, Ltd., a Barbados corporation which has no material operations or proceeding relating assets) have been duly and validly authorized and issued, and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, are owned of record and, to patentsthe best knowledge of such counsel after reasonable inquiry, patent rights beneficially by the Company either directly, or licensesthrough wholly owned Subsidiaries, trademarks free and clear of any perfected security interest and, to the best knowledge of such counsel after reasonable inquiry, any other security interest, claim, lien or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes encumbrance;
(iii) the Company's authorized equity capitalization is as set forth in the Prospectus; and substances, owned by or affecting the business or operations Securities conform in all material respects to the description thereof contained in the Prospectus; all of the outstanding shares of capital stock of the Company which have been duly and validly authorized and issued, are fully paid and nonassessable and are free of any preemptive rights and, to the best knowledge of such counsel after due inquiry, other rights to subscribe for such capital stock;
(iv) this Agreement and the Indenture have been duly authorized, executed and delivered, the Indenture has been duly qualified under the Trust Indenture Act, and this Agreement and the Indenture constitute a legal, valid and binding instruments enforceable against the Company and the Subsidiary Guarantors in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture, and the description of the Securities in the Prospectus will conform in all material respects to the Securities;
(v) the Subsidiary Guarantees to be endorsed on the Securities have been duly and validly authorized by each Subsidiary Guarantor and when executed by the Subsidiary Guarantors in accordance with the Indenture and upon delivery to the Underwriters, will have been validly issued and delivered, and will constitute valid and binding obligations of the Subsidiary Guarantors entitled to the benefits of the Indenture, and the description of such Subsidiary Guarantees in the Prospectus will conform in all material respects to such Subsidiary Guarantees;
(vi) to the best knowledge of such counsel after reasonable inquiry, there is no pending or threatened against action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries or its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by thetheir property of
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) a. If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM 12:00 Noon New York City time on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; , if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b424 (b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company threatened and all requests for additional information on the part of the Commission shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed been complied with to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at ' reasonable satisfaction.
b. On the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to the Representatives the opinion (a draft of such counsel such documents opinion is attached as they request for the purpose Annex I hereto) of enabling them to pass upon such matters.
(d) The Company shall have requested Xxxx X. Xxxxxxx, Senior Vice President and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for General Counsel of the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives Date, to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations i. each of the Company and the Significant Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which are pending it is chartered or threatened against the Company or any of organized, with full corporate power and authority to own its officers or directors.
(iii) The Company is listed properties and conduct its business as described in the records Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify would not have a Material Adverse Effect;
ii. all the outstanding shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there Significant Subsidiaries are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of owned by the Company. To the knowledge of such counsel, the Applications are being pursued by theeither directly or through wholly-owned subsidiaries, free and
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationPerkins Coie LLP, counsel for the Company, to have furnished to the Representatives xxx Xxxerwriters their opinion, dated the Closing Date and addressed to the Representatives, Underwriters substantially in substantially the form attached hereto as EXHIBIT A. of Annex A hereto. In rendering such opiniontheir opinion as aforesaid, such counsel may rely (A) upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Company as to matters involving the application of laws of any jurisdiction other than the United States or the State of Delaware or the Federal laws Washington, provided that (1) each such local counsel is acceptable to you, (2) such reliance is expressly authorized by each opinion so relied upon and a copy of the United Stateseach such opinion is delivered to you and is, in form and substance satisfactory to the extent they deem proper you and specified your counsel, and (3) counsel shall state in such opinion, upon the their opinion of other counsel of good standing whom that they believe to be reliable that they and who are satisfactory to counsel for the Underwriters are justified in relying thereon; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives Underwriters shall have received from Xxxxxxx Xxxxxxx King & Xxxxxxxx Spalding LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for furnished to the Underwriters a certificate of the Company, to have furnished to signed by the Representatives their opinionChief Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) As the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company and Shurgard Europe for the three-month period ended March 31, 2003, and at March 31, 2003 in accordance with Statement on Auditing Standards No. 100, and stating in effect, except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements and financial statement schedules of each of the Company, Shurgard Europe and Recom included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries and by each of Shurgard Europe and Recom; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the Company and Shurgard Europe for the three-month period ended March 31, 2003 and as at March 31, 2003, included or incorporated by reference in the Registration Statement and the Final Prospectus; 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 compensation committees of the Company and the Subsidiaries, Shurgard Europe and Recom; and inquiries of certain officials of each of the Company, Shurgard Europe and Recom who have responsibility for financial and accounting matters of the Company and its subsidiaries, Shurgard Europe and Recom, as applicable, as to transactions and events subsequent to December 31, 2002, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles in the United States applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to December 31, 2002, there were any changes, at a specified date not more than three Business Days prior to the date of the letter, in the long term debt (defined as lines of credit plus notes payable) of the Company and its subsidiaries or capital stock of the Company or decreases in consolidated assets or the shareholders' equity of the Company as compared with the amounts shown on the December 31, 2002 consolidated balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from January 1, 2003, to such specified date there were any decreases, as compared with the same period in the prior year, in consolidated revenue or income before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included or incorporated by reference in the Registration Statement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries, Shurgard Europe and Recom, as applicable) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive positionCapitalization" and "--We may be subject to intellectual property rights disputes which could divert managementSelected Financial Information" in the Final Prospectus, in Items 1, 2, 6, 7 and 11 of the Company's attention Annual Report on Form 10-K, incorporated by reference in the Registration Statement and could be costlythe Final Prospectus, the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q included or incorporated by reference in the Registration Statement and the Final Prospectus, and the information included in the Company's Current Reports on Form 8-K dated May 12, 2003, May 16, 2003, May 22, 2003, June 2, 2003, July 2, 2003 and July 7, 2003, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, Shurgard Europe and Recom, as applicable, excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus (the "Business-- Intellectual Property," nothing has come pro forma financial statements"); carrying out certain specified procedures; inquiries of certain officials of the Company, Shurgard Europe and Recom who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention of such counsel which caused them to believe that the abovepro forma financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-mentioned sections 02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement and (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company 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 Final Prospectus (exclusive of any supplement thereto made available 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 reviewed adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by such counsel, at the time the Registration Statement became effective (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at all times subsequent thereto up any time prior to, the Closing Date by the Representatives . Notice of such cancellation shall be given to and the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of King & Spalding LLP, counsel for the Underwriters, at 191 Peachtree Street, Atlanta, Georgia 30303, on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsDate.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Samples: Underwriting Agreement (Shurgard Storage Centers 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationLLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their its opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office form attached hereto as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theExhibit A.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Ropes & Xxxxxx, Professional CorporationXxxx LLP, counsel for the Company, or other counsel with respect to matters relating to the Company’s subsidiaries listed on Schedule II that are organized in jurisdictions outside of the United States, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. Exhibit D.
(c) The Selling Stockholder shall have requested and caused Xxxxx & XxXxxxxx, LLP, counsel for the Selling Stockholder, to have furnished to the Representatives their opinion dated the Closing Date and addressed to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by the Selling Stockholder;
(ii) assuming that each Underwriter acquires its interest in the Securities it has purchased from the Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriter maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities;
(iii) no consent, approval, authorization or order of any court or governmental agency or body in the United States or Luxembourg is required for the consummation by the Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the organizational documents of the Selling Stockholder or the terms of any indenture or other agreement or instrument known to such counsel and to which the Selling Stockholder is a party or bound, or any judgment, order or decree known to such counsel to be applicable to any Selling Stockholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any Selling Stockholder. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company Selling Stockholder and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(cd) The Representatives shall have received from Xxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxxxx Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company on behalf of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(f) The Selling Stockholder shall have furnished to the Representatives a certificate, signed by the managing director or principal executive officer of the Selling Stockholder, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that the representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(g) The Company shall have requested and caused both Xxxxxxxx Ernst & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Young LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, to the effect set forth in Exhibit B.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company 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 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) and the Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company and the Selling Stockholder shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) All of the Reorganization Transactions and the Recapitalization Transactions shall have been consummated.
(m) On or prior to the Closing Date and simultaneous with the Closing, the Company shall have duly and validly entered into the Credit Agreement pursuant to legally enforceable terms.
(n) The Representatives shall have received on the Closing Date a certificate of the Company, addressed to the Representatives and dated such Closing Date, and executed by the chief financial officer of the Company containing statements and information with respect to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property operating information and proprietary rights may be insufficient to protect our competitive position" certain market and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of industry information contained in the Registration Statement and the Prospectus, substantially in the form attached as Exhibit C hereto.
(o) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company, addressed to the Representatives. If any amendment of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or supplement thereto made available if any of the opinions and reviewed certificates 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 counselcancellation shall be given to the Company and the Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, at the time the Registration Statement became effective and at all times subsequent thereto up to and Four Time Square, New York, New York, on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsDate.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Winthrop, Stimson, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporationand Xxxxxxx, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in substantially good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company;
(ii) the Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and, assuming receipt by the Company of the consideration payable for the issuance thereof, are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to statutory preemptive or, to the knowledge of such counsel, other rights to subscribe for the Securities;
(iii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and, to the knowledge of such counsel, there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required;
(iv) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than the financial statements and other statistical and financial information contained therein, as to which such counsel need express no opinion) comply as to form attached hereto in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the Execution Time the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as EXHIBIT A. of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other statistical and financial information contained therein, as to which such counsel need express no opinion);
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an "investment company" as defined in the Investment Company Act of 1940;
(vii) no consent, approval, authorization, filing with or order of any New York, Delaware or federal court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, (i) the charter or by-laws of the Company, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel to which the Company is a party or bound or to which its property is subject, (iii) any statute, law, rule or regulation applicable to the Company, or (iv) any judgment, order or decree known to such counsel applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties; and
(ix) except as disclosed in the Registration Statement and to the knowledge of such counsel, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx Cravath, Swaine & Xxxxxxxx LLPXxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, KPMG LLP to have furnished to the Representatives their opinionletters, at the Execution Time and at the Closing Date, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 1999 and as at March 31, 1999, in accordance with Statement on Auditing Standards No. 71, and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; their limited review, in accordance with standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the three-month period ended March 31, 1999, and as at March 31, 1999, as indicated in their report dated , 1999; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the statements under comments set forth in such letter; a reading of the captions "Risk Factors-- Our intellectual property minutes of the meetings of the stockholders, directors and proprietary rights may be insufficient audit and compensation committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to protect our competitive position" transactions and "--We may be subject events subsequent to intellectual property rights disputes which could divert management's December 31, 1998, nothing came to their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of that:
(1) any unaudited financial statements included in the Registration Statement and any amendment or supplement thereto made available the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and reviewed with the related rules and regulations adopted by such counsel, at the time Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingProspectus;
(ii2) Such counsel knows with respect to the period subsequent to March 31, 1999, there were any changes, at a specified date not more than five days prior to the date of no material actionthe letter, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, knowin the long-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations term debt of the Company which are pending or threatened against capital stock of the Company or decreases in the stockholders' equity of the Company as compared with the amounts shown on the March 31, 1999 balance sheet included in the Registration Statement and the Prospectus, or for the period from April 1, 1999 to such specified date there were, as compared with the corresponding period in the preceding quarter, any decrease in revenues or any increase in the total or per share amount of its officers net loss of the Company, except in all instances for changes, decreases or directors.increases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents"Company) and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form set forth in the preparation or filing Registration Statement and the Prospectus, including the information set forth under the captions "Management's Discussion and Analysis and Financial Condition and Results of Operations", "Selected Financial Data", "Prospectus Summary--Summary Financial Data", "Capitalization", "Dilution", "Business" and "Risk Factors" in the Applications on behalf Prospectus, agrees with the accounting records of the Company. To the knowledge , excluding any questions of such counsel, the Applications are being pursued by thelegal interpretation; and
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 Fund and the Adviser 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 Fund made in any certificates pursuant to the provisions hereof, to the performance by the Company Fund or the Adviser of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b)497, the Prospectus, and any such supplement, will be 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 shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Fund shall have requested and caused Xxxxxx Xxxxxxx Paul, Hastings, Xxxxxxxx & Xxxxxx, Professional CorporationXxxxxx LLP, counsel for the CompanyFund, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) The Fund has been duly formed and is validly existing in substantially good standing as a statutory trust under the laws of the State of Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification; and that the Fund has no subsidiaries;
(ii) The Fund's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Fund conforms in all material respects to the description thereof contained in the Prospectus; all outstanding Common Shares have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the AMEX; the certificates for the Securities are in valid and sufficient form; the holders of outstanding Common Shares are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Fund are outstanding;
(iii) To the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Fund or its property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required by the Act, the 1940 Act or the Rules and Regulations; and the statements included in the Prospectus under the headings "Tax Matters" and "Anti-Takeover and Other Provisions in the Declaration of Trust" insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(iv) The Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 497 have been made in the manner and within the time period required by Rule 497; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form attached hereto in all material respects with the applicable requirements of the Act and the Act Rules and Regulations; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as EXHIBIT A. of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(v) The execution and delivery of and the performance by the Fund of its obligations under this Agreement and the Fund Agreements have been duly and validly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund and constitute the valid and legally binding agreements of the Fund, enforceable against the Fund in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Fund's obligations thereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(vi) The Fund is duly registered with the Commission under the 1940 Act as a closed-end, diversified management investment company and all action has been taken by the Fund as required by the Act and the 1940 Act and the Rules and Regulations in connection with the issuance and sale of the Securities to make the public offering and consummate the sale of the Securities as contemplated by this Agreement; the Fund Agreements comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations; and the Fund has not received any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement;
(vii) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained under the Act and the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) Neither the issuance and sale of the Securities, the execution, delivery or performance of this Agreement or any of the Fund Agreements by the Fund, nor the consummation by the Fund of the transactions contemplated hereby or thereby or the adoption of the Fund's Dividend Reinvestment Plan (i) conflicts or will conflict with or constitutes or will constitute a breach of the declaration of trust or by-laws of the Fund, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under, any material agreement, indenture, lease or other instrument to which the Fund is a party or by which it or any of its properties may be bound or (iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Fund or any of its properties or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Fund pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Fund is subject; and
(ix) No holders of securities of the Fund have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company Fund and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives You shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLPon the Closing Date an opinion of Xxxxxx X. Xxxxxxx, Esq., counsel for the Underwriters, such opinion or opinionsAdviser, dated the Closing Date and addressed to the Representativesyou, with respect to the issuance and sale as Representatives of the Securitiesseveral Underwriters, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As The Adviser has been duly formed and is validly existing in good standing as a corporation under the laws of the State of California, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification.
(ii) The Adviser is duly registered as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Fund Agreements to which it is a party for the Fund or the Additional Compensation Agreement as contemplated by the Prospectus;
(iii) The Adviser has full power and authority to enter into this Agreement, the Fund Agreements to which it is a party and the Additional Compensation Agreement; and this Agreement, the Fund Agreements to which it is a party and the Additional Compensation Agreement have been duly authorized, executed and delivered by the Adviser and this Agreement, the Fund Agreements to which the Adviser is a party and the Additional Compensation Agreement are each a valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms except as rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy and subject to the statements under qualification that the captions "Risk Factors-- Our intellectual property and proprietary rights enforceability of the Adviser's obligations thereunder may be insufficient limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to protect our competitive position" or affecting creditors' rights generally and "--We may be subject by general equitable principles whether enforcement is considered in a proceeding in equity or at law;
(iv) This Agreement, the Fund Agreements to intellectual which the Adviser is a party and the Additional Compensation Agreement comply in all material respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and Regulations;
(v) Neither the execution, delivery or performance of this Agreement, the Fund Agreements to which the Adviser is a party or the Additional Compensation Agreement, nor the consummation by the Adviser of the transactions contemplated hereby and thereby (A) conflicts or will conflict with, or constitutes or will constitute a breach of or default under, the certificate of incorporation or bylaws, or other organizational documents, of the Adviser or (B) conflicts or will conflict with, or constitutes or will constitute a material breach of or material default under any material agreement, indenture, lease or other instrument to which the Adviser is a party, or will result in the creation or imposition of any material lien, charge or encumbrance upon any material property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come or material assets of the Adviser, nor will any such action result in any material violation of any law of the State of New York, the Delaware General Corporation Law, the 1940 Act, the Advisers Act or any regulation or judgment, injunction, order or decree applicable to the attention Adviser or any of its properties;
(vi) The description of the Adviser and its business in the Prospectus complies in all material respects with all requirements of the Act, the 1940 Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable inquiry, other than as described or contemplated in the Prospectus, there are no actions, suits or other legal or governmental proceedings pending or threatened against the Adviser or to which caused them the Adviser or any of its property is subject which are required to be described in the Prospectus;
(viii) The Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations as are necessary for it to carry on its business as contemplated in the Prospectus;
(ix) No material consent, approval, authorization or order of or registration or filing with any court, regulatory body, administrative or other governmental body, agency or official is required on the part of the Adviser for the performance of this Agreement, the Fund Agreements or the Additional Compensation Agreement by the Adviser or for the consummation by the Adviser of the transactions contemplated hereby or thereby; and
(x) Such counsel shall also state that he has no reason to believe that on the above-mentioned sections of Effective Date or the date the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time was last deemed amended the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
misleading (iiin each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion). In rendering such opinion, such counsel may rely (A) Such counsel knows as to matters involving the application of no material action, suit, claim laws of any jurisdiction other than the State of California or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records Federal laws of the United States Patent States, to the extent they deem proper and Trademark Office 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 holder extent they deem proper, on certificates of record responsible officers of the patents listed on a schedule to such opinion (the "Patents") Fund and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by thepublic
Appears in 1 contract
Samples: Underwriting Agreement (Franklin Templeton Limited Duration Income Trust)
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx King & Xxxxxx, Professional CorporationSpalding, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As each of the Company and National Service Industries, Inc., a Georgia corporation, NSI Enterprises, Inc., a California corporation and Zep Manufacturing Company, a Delaware company (individually a "Subsidiary" and collectively the "Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe extent that the above-mentioned sections failure to be so qualified or be in good standing would not have a material adverse effect on the financial condition, prospective financial condition, earnings, business or properties of the Registration Statement 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 Final Prospectus (exclusive of any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingthereto);
(ii) Such counsel knows all the outstanding shares of no material actioncapital stock of each Significant Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, suitand, claim or proceeding relating to patentsexcept as otherwise set forth in the Final Prospectus, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, all outstanding shares of capital stock of the Subsidiaries are owned by or affecting the business or operations of the Company which are pending either directly or threatened against through wholly owned subsidiaries free and clear of any perfected security interest and, to the Company knowledge of such counsel, after due inquiry, any other security interest, claim, lien or any of its officers or directors.encumbrance;
(iii) The Company the Company's authorized equity capitalization is listed as set forth in the records Final Prospectus; the Securities [and the Common Stock] conform[s] in all material respects to the description thereof contained in the Final Prospectus; [the Securities [and the shares of Common Stock issuable upon conversion of the United States Patent Securities] are duly listed, and Trademark Office as admitted and authorized for trading subject to official notice of issuance [and evidence of satisfactory distribution] on the holder ,]; [the shares of record Common Stock initially issuable upon conversion of the patents listed on a schedule to Securities have been duly and validly authorized and reserved for issuance upon such opinion (conversion and, when issued upon conversion, will be validly issued, fully paid and nonassessable]; the "Patents") Securities [and each the shares of Common Stock issuable upon conversion of the applications listed on a schedule Securities] have been duly and validly authorized, and, when issued and delivered to such opinion and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(the "Applications"). To iv) to the knowledge of such counsel, there are is no claims of third parties to pending or threatened action, suit or proceeding by or before any ownership interest court or lien with respect to governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Patents or Applications. Such counsel Registration Statement which is not aware of any material defect in form adequately disclosed in the preparation Final Prospectus, and there is no franchise, contract or filing other document of a character required to be described in the Applications on behalf of Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; [and the Company. To statements included or incorporated by reference in the knowledge of such counselFinal Prospectus under the heading[s] "Tax Matters", " " and " " fairly summarize the Applications are being pursued by thematters therein described;
Appears in 1 contract
Samples: Underwriting Agreement (National Service Industries 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 Option Closing Date pursuant to Section 3 hereof, 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM a.m. on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Common Stock, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and transactions contemplated hereby, shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) The Company shall have requested and caused Xxxxxx & Xxxxxxx P.C., special Xxxxxxxx & Islands counsel for the Company, to have furnished to the Representatives their written opinion, dated the Closing Date and addressed to the Representatives, in the form attached as Exhibit B.
(d) The Company shall have requested and caused Xxxxxxx Xxxxxxx LLP, special British Virgin Islands counsel for the Company, to have furnished to the Representatives their written opinion, dated the Closing Date and addressed to the Representatives, in the form attached as Exhibit C.
(e) The Company shall have requested and caused Broad and Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their written opinion and letter, dated the Closing Date and addressed to the Representatives, in the form attached as Exhibit D.
(f) The Company shall have requested and caused Xxxxx & Co. P.C., special United States counsel for the Company, to have furnished to the Representatives their written opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are substance reasonably satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Samples: Underwriting Agreement (Seanergy Maritime 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 Transaction Entities contained herein as of the Execution Time, the Closing Date and any each settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Lxxxx Lxxxxxx & Xxxxxx, Professional CorporationSxxx LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date (or the applicable settlement date, as the case may be) and addressed to the Representatives, in substantially to the form matters attached hereto as EXHIBIT A. Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Texas, New York or Delaware (to the extent limited to Delaware corporate laws) or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date (or the applicable settlement date, as the case may be). The Underwriters acknowledge that the law firm of Vxxxxxx LLP is satisfactory. In addition, Lxxxx Liddell & Sxxx LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, no facts have come to such counsel’s attention which leads such counsel to believe that, on the Effective Date, the Registration Statement (exclusive of any amendment thereto filed after the date hereof) contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus, as of its date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, related notes and schedules and other financial and statistical information included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no statement).
(c) The Representatives shall have received the favorable opinion, dated the Closing Date (or the applicable settlement date, as the case may be), of Vxxxxxx LLP, special Maryland Counsel of the Company, to the matters attached as Exhibit B hereto. In rendering such opinions, such counsel may limit its opinions to the laws of the State of Maryland, and matters specifically governed thereby. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(d) The Representatives shall have received from Xxxxxxx Xxxxxxx Sidley Axxxxx Xxxxx & Xxxxxxxx LLPWxxx llp, counsel for the Underwriters, such opinion or opinions, dated the Closing Date (or the applicable settlement date, as the case may be) and addressed to the Representatives, with respect to the issuance and sale of the Securities, the disclosure in the Registration Statement, Statement and the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers and general partner of the Company and Operating Partnership, respectively, and public officials. In addition, in rendering such opinion, counsel may rely on and assume the accuracy of an opinion of Vxxxxxx LLP, special Maryland counsel of the Company, dated as of the Closing Date (or the applicable settlement date, as the case may be), with respect to certain matters of Maryland law.
(de) The Each of the Company and the Operating Partnership shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate, signed by the Chairman of the Board or President and the principal financial or accounting officer of the Company on behalf of the Company and ACCHL, for itself and as general partner of the Operating Partnership, respectively, dated the Closing Date and addressed to (or the Representatives applicable settlement date, as the case may be), to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property representations and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections warranties of the Registration Statement Transaction Entities in this Agreement are true and any amendment correct on and as of the Closing Date (or supplement thereto the applicable settlement date, as the case may be) with the same effect as if made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date (or the applicable settlement date, as the case may be) and the Transaction Entities have complied with all the agreements and satisfied all the conditions on any later date on which Option Stock are its part to be purchasedperformed or satisfied at or prior to the Closing Date (or the applicable settlement date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make as the statements therein, in light of the circumstances under which they were made, not misleadingcase may be);
(ii) Such counsel knows no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material actionadverse effect on the condition (financial or otherwise), suitbusiness, claim earnings, properties, assets or proceeding relating prospects of the Transaction Entities and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time, the Representatives shall have received a letter from Ernst & Young LLP dated such date, in form and substance reasonably satisfactory to patentsthe Representatives, patent rights together with signed or licensesreproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(g) On the Closing Date (or the applicable settlement date, trademarks as the case may be), the Representatives shall have received a letter, dated the Closing Date (or trademark rightsthe applicable settlement date, copyrightsas the case may be), collaborative researchof Ernst & Young LLP to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, licenses except that the specified date referred to shall be a date not more than three Business Days prior to the Closing Date (or royalty arrangements the applicable settlement date, as the case may be).
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or agreements decrease specified in the letter or trade secretsletters referred to in paragraph (f) of this Section 6 or (ii) any change, know-how or proprietary techniquesany development involving a prospective change, including processes and substances, owned by in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Transaction Entities and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Prospectus (exclusive of any supplement thereto), (iii) any downgrading in, or withdrawal of, the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iv) any significant change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the sole judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Securities, whether in the primary market or in respect of dealings in the secondary market, (v) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such Exchange, or maximum ranges of prices have been required, by such Exchange or by such system or by order of the Commission, the NASD or any other governmental authority, (vi) any banking moratorium declared either by Federal or New York State authorities, (vii) any outbreak or significant escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any significant change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Prospectus (exclusive of any supplement thereto), (viii) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or other governmental authority which in the Representatives’ opinion materially and adversely affects or may materially and adversely affect the business or operations of the Company which are pending or threatened against (ix) the Company taking of any action by any governmental body or any agency in respect of its officers monetary or directorsfiscal affairs which in the Representatives’ reasonable opinion has a material adverse effect on the securities markets in the United States.
(iiii) The Company is listed On or prior to the Closing Date, the Representatives shall have received lock-up agreements substantially in the records form of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion Exhibit E hereto (the "Patents"“Lock-up Agreements”) and from each of the applications executive officers and directors listed on a schedule to such opinion Schedule II hereof.
(the "Applications"). To the knowledge of such counsel, there are no claims of third parties to j) The NASD shall have confirmed that it has not raised any ownership interest or lien objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(k) At the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(l) On the Closing Date (or the applicable settlement date, as the case may be), counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the Patents representations or Applications. Such counsel is not aware warranties, or the fulfillment of any material defect of the conditions, herein contained; and all proceedings taken by the Transaction Entities in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(m) Prior to the Closing Date (or the applicable settlement date, as the case may be), the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the preparation provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. Any certificate or filing document signed by any officer or representative of the Applications Transaction Entities and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by each of the Transaction Entities to the Underwriters as to the statements made therein. The Transaction Entities will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the CompanyUnderwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of a Closing Date (or any settlement date, as the case may be) or otherwise. To If any of the knowledge 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 counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Axxxxx Xxxxx & Wxxx llp, counsel for the Applications are being pursued by theUnderwriters, at 700 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date (or the applicable settlement date, as the case may be).
Appears in 1 contract
Samples: Underwriting Agreement (American Campus Communities Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx furnished to the Representatives the opinion of Akin Gump Xxxxxxx Xxxxxxxx Xxxxx & Xxxxxx, Professional CorporationXxxx LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed Date, to the Representativeseffect that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Texas, with corporate power and authority to own or lease its properties and conduct its business as described in the Final Prospectus; and the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable; and, to such counsel's knowledge, except (A) as reflected in the Company's financial statements, (B) as described in the Registration Statement or (C) as set forth on Schedule III hereto or as disclosed in such counsel's opinion, (x) the outstanding shares of capital stock of each of the Subsidiaries are owned by the Company or its subsidiary free and clear of all liens, encumbrances and security interests and (y) no options, warrants or other rights to purchase, agreements or other obligations to issue, or other rights to convert any obligations into any shares of capital stock or of ownership interests in the Subsidiaries are outstanding.
(ii) The Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(iii) Except as described in the Final Prospectus, to the knowledge of such counsel, no holder of any securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Securities or the right to have any Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of any shares of Common Stock or other securities of the Company.
(iv) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, in substantially respect to both the Indenture and the Securities, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent conveyance or transfer, moratorium or other laws affecting creditors' rights generally from time to time in effect);
(v) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened under the Act.
(vi) The Registration Statement, the Final Prospectus and each amendment or supplement thereto and documents incorporated by reference therein (each as amended to date) comply as to form attached hereto in all material respects with the requirements of the Act or the Exchange Act, as EXHIBIT A. applicable and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the statistical information contained in the Final Prospectus or financial statements, schedules and other financial information incorporated by reference therein).
(vii) The statements under the captions "Business" and "Description of the Notes" in the Final Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and accurately present the information called for with respect to such documents and matters in all material respects.
(viii) Except as set forth on Schedule III, to such counsel's knowledge, there are no contracts or documents required to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Final Prospectus (excluding any document incorporated therein by reference) which are not so filed or described as required, and such contracts and documents as are summarized in the Registration Statement or the Final Prospectus (excluding any document incorporated therein by reference) are fairly summarized in all material respects.
(ix) Except as set forth on Schedule III, to such counsel's knowledge, there are no material legal proceedings pending or threatened against the Company or any of the Subsidiaries which are of a character required to be disclosed in the Final Prospectus and which has not been properly disclosed therein.
(x) The execution and delivery of the Indenture, the issuance and sale of the Securities and the execution and delivery of this Agreement and the consummation of the transactions herein contemplated do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, (a) the Articles of Incorporation or (b) By-laws of the Company, or (c) to such counsel's knowledge, any agreement or instrument filed as an exhibit to the Company's most recent annual report on Form 10-K or any subsequent quarterly report of the Company on Form 10-Q (other than licenses or permits granted by the FCC, on which such counsel need not express any opinion), or (d) will not contravene any law, rule or regulation of the United States or the State of Texas or the General Corporation Law of the State of Delaware, or, to such counsel's knowledge, any order or decree of any court or governmental agency or instrumentality, except, with respect to clause (c) above, a conflict, breach or default which would not have a materially adverse effect on the business or financial condition of the Company and its subsidiaries taken as a whole.
(xi) This Agreement has been duly authorized, executed and delivered by the Company.
(xii) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body having jurisdiction over the Company is necessary in connection with the execution and delivery of this Agreement and the consummation of the transactions herein contemplated (other than as may be required by the NASD or NYSE or as required by State securities and Blue Sky laws as to which such counsel need express no opinion) except such as have been obtained or made, specifying the same.
(xiii) The Company is not, and will not become, as a result of the consummation of the transactions contemplated by this Agreement, and application of the net proceeds therefor as described in the Final Prospectus, required to register as an investment company under the 1940 Act. In rendering such opinion, such counsel may rely (A) as to matters involving governed by the application of laws of any jurisdiction states other than the State of Delaware Texas or the Federal laws of the United States, to the extent they deem proper and specified on local counsel in such opinionjurisdictions, upon provided that in each case such counsel shall state that they believe that they and the opinion of Underwriters are justified in relying on such 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 officialscertificates or other written statements of officers or departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and any Subsidiary. References In addition to the matters set forth above, such opinion shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that the Registration Statement, as of the time it became effective under the Act, the Final Prospectus in this paragraph (bor any amendment or supplement thereto, on the date it was filed pursuant to Rule 424(b) include and the Registration Statement and the Final Prospectus, or any supplements thereto at amendment or supplement thereto, as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that such counsel need express no view as to matters pertaining to the statistical information contained in the Final Prospectus or financial statements, schedules and other financial information contained or incorporated by reference in the Final Prospectus). With respect to such statement, such counsel may state that their belief is based upon the procedures set forth therein, but is without independent check and verification.
(c) The Underwriters shall have received on the Closing Date the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, special FCC counsel to the Company, dated the Closing Date, addressed to the Underwriters as is reasonably acceptable to the Underwriters.
(d) The Representatives shall have received from Xxxxxxx Xxxxxxx Cravath, Swaine & Xxxxxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, in their opinioncapacity as such, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property representations and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections warranties of the Registration Statement Company in this Agreement are true and any amendment or supplement thereto correct in all material respects on and as of the Closing Date with the same effect as if made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on any later date on which Option Stock are its part to be purchased, contained any untrue statement of a material fact performed or omitted satisfied at or prior to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing Date;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting stop order suspending the business or operations effectiveness of the Company which are pending or threatened against Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company or any of its officers or directors.Company's knowledge, threatened; and
(iii) The Company is listed since the date of the most recent financial statements included in the records Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, business or properties of the United States Patent Company and Trademark Office its subsidiaries, taken as a whole, whether or not arising from transactions in the holder ordinary course of record business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date Ernst & Young LLP shall have furnished to the Representatives letters dated as of the patents listed on a schedule Execution Time and the Closing Date in form and substance satisfactory to such opinion the Representatives.
(g) Except as agreed to by Banc of America Securities LLC, subsequent to the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselExecution Time, there are no claims shall not have been any decrease in the rating of third parties to any ownership interest or lien with respect to any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purpose of Rule 436(g) under the Act) or Applications. Such counsel is not aware any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material defect 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 in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of Cravath, Swaine & Xxxxx LLP, counsel for the Applications are being pursued by theUnderwriters, at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Clear Channel Communications 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM New York City time on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationLLP, counsel for the Company, to have furnished to the Representatives their its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in substantially Annex B hereto. The Company shall have caused Xxxxxx X. Xxxxxxxx, Corporate Vice President-Corporate Development, General Counsel and Secretary of the form attached hereto as EXHIBIT A. In rendering such Company to have furnished to the Representatives his opinion, such counsel may rely (A) as dated the Closing Date and addressed to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United StatesRepresentatives, to the extent they deem proper and specified effect set forth in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateAnnex C hereto.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date pursuant to Section 3 hereto substantially in the form of Exhibit B hereto.
(e) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, to the effect set forth in Annex D hereto.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been included for quotation on the Nasdaq National Market and satisfactory evidence of such action shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter addressed to the Representatives to substantially in the effect that:form of Exhibit A hereto from each of the executive officers and directors of the Company and from an authorized officer of each of Advanced Micro Devices, Inc. and Fujitsu Limited.
(k) The closing of the purchase of the (i) As senior unsecured notes to be issued and sold by Spansion LLC pursuant to the statements under Purchase Agreement dated the captions "Risk Factors-- Our intellectual property date hereof among Spansion LLC, the Company, as guarantor, and proprietary rights the initial purchasers party thereto and (ii) mandatory convertible preferred stock to be issued and sold by the Company pursuant to the Mandatory Convertible Preferred Stock Underwriting Agreement dated the date hereof between the Company and the underwriters party thereto (the “Mandatory Convertible Preferred Stock Underwriting Agreement”) shall occur concurrently with the closing described herein. If any of the 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 insufficient to protect our competitive position" and "--We may cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come given to the attention Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of such Xxxxx Xxxx & Xxxxxxxx, counsel which caused them to believe that for the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counselUnderwriters, at the time the Registration Statement became effective and at all times subsequent thereto up to and 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsDate.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b), or if the filing of the Rule 434 Term Sheet is required pursuant to Rule 434, the Rule 434 Term Sheet will be filed in the manner and within the time period required by Rule 424(b)434; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bi) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinionthe opinion of the Vice President, General Counsel and Secretary of the Company, dated the Closing Date and addressed to the RepresentativesDate, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i1) As to the statements Company has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement State of Ohio, with full corporate power to own its properties and any amendment conduct its business as described in the Final Prospectus and is qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or supplement thereto made available and reviewed by such counsel, at leases material properties or conducts material business except where the time the Registration Statement became effective and at all times subsequent thereto up failure to and so qualify would not have a material adverse effect on the Closing Date Company and on any later date on its subsidiaries taken as a whole. The Company's significant subsidiaries (as defined in Rule 405 under the Securities Act) (the "Subsidiaries") are duly incorporated and validly existing as corporations in good standing under the laws of the jurisdiction in which Option Stock it is organized, each with full corporate power and authority to own properties and conduct business as described in the Final Prospectus, and are duly qualified to be purchased, contained any untrue statement do business as foreign corporations and are in good standing under the laws of each jurisdiction which requires such qualification wherein each such Subsidiary owns or leases material properties or conducts material business except where the failure to so qualify would not have a material fact or omitted to state a material fact required to be stated therein or necessary to make adverse effect on the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which and its Subsidiaries taken as a whole;
(2) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances;
(3) the Company's authorized equity capitalization is as set forth in the Final Prospectus;
(4) the Indenture has been duly authorized, executed and delivered, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, in the case of the Underwriters' Securities, or by the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of any Contract Securities, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(5) to the knowledge of such counsel, after due inquiry, there is no pending or threatened against action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its officers subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or directors.other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Final Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters;
(iii6) The Company is listed in the records Registration Statement and the Final Prospectus (including, for the avoidance of doubt, the United States Patent and Trademark Office documents incorporated by reference therein as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counseldate, there are other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theopinion) comply
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of ------------------------------------------------- the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives Underwriters agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxx, Xxxxxx Xxxxxxx & Xxxxxxxx & Xxxxxx, Professional CorporationLLP, counsel for the Company, to have furnished to the Representatives Underwriters their opinion, dated the Closing Date and addressed to the RepresentativesUnderwriters, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus; and the Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole;
(ii) the Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold by the Selling Stockholders are duly listed, and admitted and authorized for trading, on the Nasdaq Stock Market's National Market and the Securities being sold hereunder by the Company are duly listed, and admitted and authorized for trading, subject to official notice of issuance, on the Nasdaq Stock Market's National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, to the knowledge of such counsel, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings "Risk Factors--If UP&UP Acquires a Savings Bank, as Proposed, It Will Become Subject to Extensive Federal Regulations Which Could Limit Its Future Operations," "Business--Federal Savings Bank," "Business--Health Extras," "Business--Contracts with Payors and Providers," "Business--Government Regulation," "Business--Legal Proceedings," "Management--Employment Agreements," "Management--Stock Option and Stock Purchase Plans," "Certain Transactions," "Principal and Selling Stockholders" and "Shares Eligible for Future Sale," to the extent that such statements constitute matters of law or legal conclusions or summaries of contracts or other legal documents, fairly summarize the matters therein described; and such counsel does not know of any laws, rules, or regulations applicable to the business of the Company and its subsidiaries required to be described in the Registration Statement or the Prospectus that are not described as required;
(iv) the Registration Statement has become effective under the Act; any required of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the Execution Time the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in substantially the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an "investment company" as defined in the Investment Company Act of 1940, as amended;
(vii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (i) the charter or by- laws of the Company or its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject and which is filed as an exhibit to the Registration Statement (or any document incorporated by reference therein) or, to the knowledge of such counsel, any other such agreements to which the Company or any of its subsidiaries is a party, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties;
(ix) to the knowledge of such counsel, no holders of securities of the Company have registration rights entitling them to inclusion of such securities in the Registration Statement;
(x) to the knowledge of such counsel, neither the Company nor any subsidiary is in violation or default of (i) any provision of its charter or bylaws, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject, or (iii) any statue, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable;
(xi) to the knowledge of such counsel, the Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate federal state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and
(xii) the documents incorporated by reference in the Registration Statement and the Prospectus (other than the financial statements and the other financial information contained therein, as to which such counsel need express no opinion) appeared on their face, at the time at which they were filed with the Commission, to comply as to form attached hereto as EXHIBIT A. in all material respects with the requirements of the Exchange Act. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than Maryland and the State District of Delaware or Columbia, the Federal laws of the United StatesStates and the corporation law of the State of Delaware, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 caused Xxxxxx X. Xxxx, General Counsel of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their Underwriters his opinion, dated the Closing Date and addressed to the Representatives Underwriters, to the effect that:
(i) As to the statements each Subsidiary (as defined below) has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement jurisdiction in which it is chartered or organized, with full corporate power and any amendment authority to own or supplement thereto made available lease, as the case may be, and reviewed by to operate its properties and conduct its business as described in the Prospectus; and each Subsidiary is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such counselqualification, at except where the time failure to be so qualified would not, individually or in the Registration Statement became effective and at all times subsequent thereto up to and aggregate, have a material adverse effect on the Closing Date and on any later date on which Option Stock are to be purchasedcondition (financial or otherwise), contained any untrue statement of a material fact prospects, earnings, business or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light properties of the circumstances under which they were madeCompany and its subsidiaries, not misleading;taken as a whole; and
(ii) Such counsel knows all the outstanding shares of no material actioncapital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, suitand, claim or proceeding relating to patentsexcept as otherwise set forth in the Prospectus, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, all outstanding shares of capital stock of the Subsidiaries are owned by or affecting the business or operations of the Company which are pending either directly or threatened against the Company or through wholly owned subsidiaries free and clear of any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule perfected security interest and, to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to after due inquiry, any ownership interest other security interest, claim, lien or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theencumbrance.
Appears in 1 contract
Samples: Underwriting Agreement (United Payors & United Providers 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 Transaction Entities 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Xxxx & Xxxxxx, Professional CorporationXxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially to the form matters attached hereto as EXHIBIT A. Exhibit A hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York, Delaware (to the extent limited to Delaware corporate laws) or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company or the general partner of the Operating Partnership and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. The Underwriters acknowledge that the law firm of Xxxx Xxxxxxx, LLP is satisfactory. In addition, Xxxxxxx Xxxx & Xxxxxxxxx LLP shall state that, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, no facts have come to such counsel’s attention which leads such counsel to believe that, on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements, related notes and schedules and other financial and statistical information included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no statement).
(c) The Representatives shall have received the favorable opinion, dated the Closing Date, of Xxxx Xxxxxxx, LLP, special Maryland Counsel of the Company, to the matters attached as Exhibit B hereto. In rendering such opinions, such counsel may limit its opinions to the laws of the State of Maryland, and matters specifically governed thereby. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(d) The Company shall have requested and caused Glast, Xxxxxxxx & Xxxxxx, P.C., special counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the matters attached as Exhibit C hereto.
(e) The Company shall have requested and caused Xxxxxxx Xxxxxxxxx, special counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the matters attached as Exhibit D hereto.
(f) The Representatives shall have received from Xxxxxxx Xxxxxxx Sidley Xxxxxx Xxxxx & Xxxxxxxx Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely, as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers and general partner of the Company and Operating Partnership, respectively, and public officials. In addition, in rendering such opinion, counsel may rely on and assume the accuracy of an opinion of Xxxx Xxxxxxx, LLP, special Maryland counsel of the Company, dated as of the Closing Date, with respect to certain matters of Maryland law.
(dg) The Each of the Company and the Operating Partnership shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company and the Operating Partnership, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company on behalf of the Company and ACCHL, as general partner of the Operating Partnership, respectively, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property representations and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections warranties of the Registration Statement Transaction Entities in this Agreement are true and any amendment or supplement thereto correct on and as of the Closing Date with the same effect as if made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and the Transaction Entities have complied with all the agreements and satisfied all the conditions on any later date on which Option Stock are its part to be purchased, contained any untrue statement of a material fact performed or omitted satisfied at or prior to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing Date;
(ii) Such counsel knows no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material actionadverse effect on the condition (financial or otherwise), suitbusiness, claim earnings, properties, assets or proceeding relating prospects of the Transaction Entities and their Subsidiaries (as hereinafter defined), taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(h) At the Execution Time, the Representatives shall have received a letter from Ernst & Young LLP dated such date, in form and substance reasonably satisfactory to patentsthe Representatives, patent rights together with signed or licensesreproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus.
(i) On the Closing Date, trademarks the Representatives shall have received a letter, dated the Closing Date, of Ernst & Young LLP to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (h) of this Section, except that the specified date referred to shall be a date not more than three Business Days prior to the Closing Date.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or trademark rightsdecrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, copyrightsor any development involving a prospective change, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by in or affecting the condition (financial or otherwise), earnings, business, assets, prospects or properties of the Transaction Entities and their Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in 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) and the Prospectus (exclusive of any supplement thereto); (iii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iv) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the sole judgment of the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Securities, whether in the primary market or in respect of dealings in the secondary market; (v) any suspension or material limitation by the Commission of trading in the Common Stock or trading in securities generally on the NYSE or any setting of minimum or maximum prices on such Exchange, or maximum ranges of prices have been required, by such Exchange or by such system or by order of the Commission, the NASD or any other governmental authority, (vi) any banking moratorium declared either by Federal or New York State authorities, (vii) any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Prospectus (exclusive of any supplement thereto), (viii) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or other governmental authority which in the Representatives opinion materially and adversely affects or may materially and adversely affect the business or operations of the Company which are pending or threatened against (ix) the Company taking of any action by any governmental body or any agency in respect of its officers monetary or directorsfiscal affairs which in your reasonable opinion has a material adverse effect on the securities markets in the United States.
(iiik) On or prior to the Closing Date, the Representatives shall have received lock-up agreements substantially in the form of Exhibit E hereto (the “Lock-up Agreements”) from each of the executive officers and directors and certain other stockholders of the Company listed on Schedule II hereof.
(l) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(m) At the Closing Date, the Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance and evidence of compliance with the applicable NYSE distribution requirements.
(n) On each Closing Date, counsel for the Underwriters shall have been furnished with such other documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Transaction Entities in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(o) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(p) The Company is listed in shall have, simultaneously with the records closing of the United States Patent Offering, executed a $75.0 million senior secured revolving credit facility with a syndicate of lenders led by affiliates of Deutsche Bank Securities Inc. and Trademark Office Citigroup Global Markets Inc.
(q) At the Closing Date, the Company shall have executed and delivered the Contribution Agreement to Deutsche Bank Securities Inc. and Citigroup Global Markets Inc. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. Any certificate or document signed by any officer of the Transaction Entities and delivered to the Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Transaction Entities to the Underwriters as to the statements made therein. The Transaction Entities will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications")Representatives reasonably request. To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect The Representatives may in form in the preparation or filing of the Applications their sole discretion waive on behalf of the CompanyUnderwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of a Closing Date or otherwise. To If any of the knowledge 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 counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Applications are being pursued by theUnderwriters, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (American Campus Communities Inc)
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 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; , if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings proceeding for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Xxxx & Xxxxxx, Professional CorporationXxxxxxxxx, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws Representatives on behalf of the United StatesUnderwriters, to the extent they deem proper and specified in such effect of Exhibit A.
(c) The Company shall have caused Xxxxxxx Berlin Shereff Xxxxxxxx LLP, regulatory counsel for the Company, to have furnished to the Representatives their opinion, upon dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, to the effect of Exhibit B.
(d) The Company shall have furnished to the Representatives the opinion of other counsel Xxxxxx X. Xxxxxx, Senior Vice President, General Counsel and Secretary of good standing whom they believe the Company, dated the Closing Date and addressed to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters Representatives on behalf of factthe Underwriters, to the extent they deem proper, on certificates effect of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.Exhibit C.
(ce) The Representatives shall have received from Xxxxxxx Xxxxxxx Cravath, Swaine & Xxxxxxxx LLPXxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesRepresentatives on behalf of the Underwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer and the Executive Vice President and Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since June 30, 1999, the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has not been, singularly or in the aggregate, any material adverse change in the properties, business, results of operations, financial condition, affairs or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Pricewaterhouse Coopers LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the statements under applicable accounting requirements of the captions "Risk Factors-- Our intellectual property Act and proprietary rights may be insufficient the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) nothing came to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of information included or incorporated by reference in the Registration Statement and the Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Final Prospectus and the information included or incorporated by reference in the Company's Annual Report on Form 10-K for the year ended December 31, 1998 and the Proxy Statement on Schedule 14A dated April 28, 1999, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. All references in this Section 6(g) to the Registration Statement or the Final Prospectus shall be deemed to include any amendment or supplement thereto made available and reviewed by such counsel, at the time date of the letter.
(h) At the Execution Time and at the Closing Date, Xxxxxx Xxxxxxxx LLP shall have furnished to the Representatives a letter or letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder and Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement became effective and at the Final Prospectus and reported on by them comply as to form in all times subsequent thereto up to and on material respects with the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light applicable accounting requirements of the circumstances under which they were made, not misleadingAct and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) Such counsel knows based upon (x) their review, in accordance with standards established under Statement on Auditing Standards No. 71, of no material actionthe unaudited interim financial information included in the Company's quarterly report on Form 10-Q for the three-month and six-month periods ended June 30, suit1999 and 1998, claim included or proceeding relating incorporated by reference in the Registration Statement and Final Prospectus, and (y) with respect to patentsthe period subsequent to June 30, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques1999, including processes the reading of the minutes and substances, owned by or affecting the business or operations inquiries of certain officials of the Company which who have responsibility for financial and accounting matters and certain other limited procedures requested by the Representatives and described in detail in such letter, nothing has come to their attention that causes them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are pending not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or threatened against incorporated by reference in the Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to June 30, 1999, there were any increases, at a specified date not more than five business days prior to the date of the letter, in the long-term debt of the Company and its subsidiaries or decreases in the stockholders' equity of the Company or decreases in total current assets of the Company and its subsidiaries or any change in capital stock of the Company and its officers subsidiaries, as compared with the amounts shown on the June 30, 1999 consolidated balance sheet included as an attachment to the letter or directors.letters referred to in this paragraph or for the period from July 1, 1999, to such specified date there were any decreases, as compared with the corresponding period in the immediately preceding quarter, in revenue, cost of revenue, operating earnings, EBITDA (as defined in the Final Prospectus) or in total or per share amounts of net earnings, except in all instances for increases, changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(3) the information included or incorporated by reference in the Registration Statement and the Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent Company and Trademark Office as its subsidiaries) set forth in the holder of record Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, and the information included or incorporated by reference in the Company's Annual Report on Form 10-K for the year ended December 31, 1998, Proxy Statement on Schedule 14A dated April 28, 1999, Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999 and June 30, 1999 and amended Quarterly Reports on Form 10-Q/A for the quarters ended June 30, 1998 and September 30, 1998, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the patents listed on a schedule Company and its subsidiaries, excluding any questions of legal interpretation. All references in this Section 6(h) to such opinion the Registration Statement or the Final Prospectus shall be deemed to include any amendment or supplement thereto at the date of the letter.
(i) Subsequent to the "Patents"Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and each the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any increase, change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the properties, business, results of operations, financial condition, affairs or business prospects of the applications listed on Company and its subsidiaries, taken as a schedule whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to such opinion in clause (i) or (ii) above, is, in the "Applications"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 Final Prospectus (exclusive of any supplement thereto). To .
(j) Subsequent to the knowledge of such counselExecution Time, there are no claims shall not have been (i) any decrease in the rating of third parties to any ownership interest or lien with respect to any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act) or Applications. Such counsel is not aware (ii) any notice given of any material defect intended or potential decrease in form in the preparation any such rating or filing that such organization has under surveillance or review (other than any such notice with positive implications of the Applications on behalf a possible upgrading) its rating of the Company. To 's debt securities.
(k) The Common Stock issuable upon conversion of the knowledge Securities shall have been listed and admitted and authorized for trading, subject to official notice of issuance, on the Nasdaq National Market, and reasonably satisfactory evidence of such counselactions shall have been provided to the Representatives.
(l) Prior to the Closing Date, the Applications are being pursued Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by thethe Repre sentatives. Notice of such cancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Cravath, Swaine & Xxxxx, counsel for the Underwriters, at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Level 3 Communications Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Notes shall be subject to the accuracy of the representations and warranties on the part of the Company Note Issuer and ComEd contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to on the accuracy part of ComEd contained in Article III of the statements Grant Agreement and in Section 6.01 of the Company made Servicing Agreement as of the Closing Date, on the part of the Grantee in any certificates pursuant to Article III of the provisions hereofSale Agreement as of the Closing Date, to the performance by the Company Note Issuer and ComEd of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date date, or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b)) and shall have been delivered to the Representatives as required by Section 5(a)(iv) of this Agreement; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have requested and caused received opinions of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinionComEd, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representatives, to the effect that:
(i) ComEd (a) has been duly incorporated and is validly existing as a corporation in substantially good standing under the form attached hereto laws of the State of Illinois, (b) has all requisite corporate power and authority to own its properties, conduct its business as EXHIBIT A. presently conducted and execute, deliver and perform its obligations under this Agreement, the Grant Agreement, the Servicing Agreement and the Administration Agreement, and (c) is duly qualified to do business in all jurisdictions (and is in good standing under the laws of all such jurisdictions) to the extent that such qualification and good standing is or shall be necessary to protect the validity and enforceability of this Agreement, the Grant Agreement, the Servicing Agreement and the Administration Agreement and each other instrument or agreement necessary or appropriate to the transactions contemplated hereby;
(ii) the Grant Agreement, the Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by ComEd, and constitute legal, valid and binding instruments enforceable against ComEd in accordance with their terms, except to the extent enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium, fraudulent transfer or other similar laws of general applicability relating to or affecting the enforcement of creditors' rights and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law);
(iii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving ComEd or any of its significant subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required;
(iv) this Agreement has been duly authorized, executed and delivered by ComEd;
(v) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein or the Basic Documents, except such as have been obtained under the Act, the Funding Law and the Public Utilities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Notes by the Underwriters; and
(vi) neither the execution and delivery of this Agreement, the Grant Agreement, the Servicing Agreement, the Administration Agreement nor the consummation of the transactions contemplated by this Agreement, the Grant Agreement, the Servicing Agreement or the Administration Agreement, nor the fulfillment of the terms of this Agreement, the Grant Agreement, the Servicing Agreement or the Administration Agreement by ComEd, will (A) conflict with, result in any breach or any of the terms or provisions of, or constitute (with or without notice or lapse of time) a default under the articles of incorporation, bylaws or other organizational documents of ComEd, or to the knowledge of such counsel, conflict with or breach any of the terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, material agreement or other material instrument to which ComEd is a party or by which ComEd is bound, (B) result in the creation or imposition of any lien upon any properties of ComEd pursuant to the terms of any such indenture, agreement or other instrument (other than as contemplated by the Basic Documents and Section 18-107 of the Funding Law), or (C) violate any law or any order, rule or regulation applicable to ComEd of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over ComEd, or any of its properties. In rendering such opinion, such counsel may rely (A) assume the validity and continued effectiveness of the Amendatory Act (including, without limitation, the Funding Law), (B) rely, as to matters involving the application of laws of any jurisdiction other than the State States of Delaware Illinois or the Federal laws of New York or the United States, to the extent they deem deemed proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe believed to be reliable and who are satisfactory to counsel for the Underwriters and (BC) rely, as to matters of fact, to the extent they deem deemed proper, on certificates of responsible officers of ComEd or the Company and public officialsGrantee. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx the opinion of Xxxxxx & Xxxxxxxx LLPXxxxxx, counsel for the Underwriters, such opinion or opinionsGrantee, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements Grantee has been duly formed and is validly existing as a single member limited liability company and is in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement State of Delaware, with full power and any amendment or supplement thereto made available authority to execute, deliver and reviewed by such counselperform its obligations under the Grant Agreement, at the time Sale Agreement, the Registration Statement became effective Servicing Agreement and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingAdministration Agreement;
(ii) Such counsel knows the Grant Agreement, the Sale Agreement, the Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Grantee, and constitute legal, valid and binding instruments enforceable against the Grantee in accordance with their respective terms, except to the extent enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws of no material action, suit, claim or proceeding general applicability relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business enforceability of creditors' rights and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or operations at law);
(iii) the Grant Agreement, the Sale Agreement, the Service Agreement and the Administration Agreement conform in all material respects to the descriptions thereof contained in the Final Prospectus;
(iv) neither the execution and delivery of the Grant Agreement, the Sale Agreement, the Servicing Agreement or the Administration Agreement, nor the consummation of the transactions contemplated by the Grant Agreement, the Sale Agreement, the Servicing Agreement or the Administration Agreement, nor the fulfillment of the terms of the Grant Agreement, the Sale Agreement, the Servicing Agreement or the Administration Agreement by the Grantee, will (A) conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time); a default under the Certificate of Formation or Limited Liability Company Agreement of the Grantee or conflict with or breach any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement or other instrument known to such counsel and to which are pending the Grantee is a party or threatened against by which the Company Grantee is bound, (B) result in the creation or imposition of any lien upon any properties of the Grantee pursuant to the terms of any such indenture, agreement or other instrument (other than as contemplated by the Basic Documents and Section 18-107 of the Funding Law), or (C) violate any law or any order, rule or regulation applicable to the Grantee of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Grantee, or any of its officers or directors.properties;
(iiiv) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are is no claims of third parties to pending or threatened action, suit or proceeding before any ownership interest court or lien with respect to governmental agency, authority or body or any arbitrator challenging the validity or enforceability of the Patents Grant Agreement, the Sale Agreement, the Servicing Agreement, or Applications. Such counsel the Administration Agreement of a character required to be disclosed in the Final Prospectus which is not aware adequately disclosed in the Final Prospectus;
(vi) upon the delivery of the fully executed Sale Agreement to the Note Issuer and the payment of the purchase price of the Intangible Transition Property by the Note Issuer to the Grantee pursuant to the Sale Agreement, (A) the transfer of the Intangible Transition Property by the Grantee to the Note Issuer pursuant to the Sale Agreement conveys all of the Grantee's right, title and interest in the Intangible Transition Property and related assets to the Note Issuer and will be treated as an absolute transfer of all of the Grantee's right, title and interest in the Intangible Transition Property, other than for federal and state income and franchise tax purposes, (B) such transfer of the Intangible Transition Property is perfected, (C) such transfer has priority over any other assignment of the Intangible Transition Property and related assets, and (D) the Intangible Transition Property and related assets are free and clear of all liens created prior to its transfer to the Note Issuer pursuant to the Sale Agreement; and
(vii) the Grantee is not an "investment company" or under the "control" of an "investment company" as such terms are defined under the Investment Company Act of 1940, as amended. In rendering such opinion, such counsel may (A) assume the validity and continued effectiveness of the Amendatory Act (including, without limitation, the Funding Law), (B) rely, as to matters involving the application of laws of any material defect jurisdiction other than the States of Illinois, New York or Delaware or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters and (C) rely, as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Grantee and public officials. References to the Final Prospectus in this paragraph (c) include any supplements thereto at the Closing Date.
(d) The Representatives, the Grantee, ComEd and the Indenture Trustee shall have received opinions of Xxxxxx & Xxxxxx, counsel for the Note Issuer, portions of which may be delivered by Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special Delaware counsel for the Note Issuer, each dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, to the effect that:
(i) the Certificate of Trust has been duly filed with the Secretary of State, the Note Issuer has been duly formed and is validly existing in good standing as a Delaware business trust the laws of the State of Delaware, 12 Del. C. Section 3801, ET SEQ.;
(ii) the Note Issuer has the power and authority to execute, deliver and perform its obligations under this Agreement, the Indenture, the Notes, the Administration Agreement and the Sale Agreement;
(iii) the Notes have been duly authorized and executed by the Note Issuer and, when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will be duly issued and valid and legally binding obligations enforceable in accordance with their terms (except to the extent the enforceability thereof may be limited by bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws of general applicability relating to or affecting the enforceability of creditors' rights and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)) and entitled to the benefits of the Indenture; and the Notes and the Indenture conform in all material respects to the descriptions thereof in the preparation Final Prospectus;
(iv) the Indenture, the Certificate, the Sale Agreement and the Administration Agreement have been duly authorized, executed and delivered by the Note Issuer and each constitutes a legal, valid and binding instrument enforceable in accordance with its terms, except to the extent enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium, fraudulent transfer or filing other similar laws of general applicability relating to or affecting the Applications on behalf enforceability of creditors' rights and by the Company. To effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law);
(v) the Indenture has been duly qualified under the Trust Indenture Act;
(vi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator challenging the Applications are being pursued by thevalidity or enforceability of the Notes or the Indenture of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document relating to the Notes or the Indenture of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Final Prospectus under the headings "Description of the Intangible Transition Property" "Description of the Notes," "The Trust," "Servicing," "Security for the Notes," "Material United States Federal Income Tax Consequences" and "ERISA Considerations", in each case to the extent that such statements constitute matters of Illinois, Delaware or federal law or legal conclusions with respect thereto, provide a fair and accurate summary of such law or conclusions;
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Xxxx & Xxxxxx, Professional CorporationXxxxxxxxx, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws Representatives on behalf of the United StatesUnderwriters, to the extent they deem proper and specified in such effect of Exhibit A.
(c) The Company shall have caused Xxxxxxx Berlin Shereff Xxxxxxxx LLP, regulatory counsel for the Company, to have furnished to the Representatives their opinion, upon dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, to the effect of Exhibit B.
(d) The Company shall have furnished to the Representatives the opinion of other counsel Xxxxxx X. Xxxxxx, Senior Vice President, General Counsel and Secretary of good standing whom they believe the Company, dated the Closing Date and addressed to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters Representatives on behalf of factthe Underwriters, to the extent they deem proper, on certificates effect of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.Exhibit C.
(ce) The Representatives shall have received from Xxxxxxx Xxxxxxx Cravath, Swaine & Xxxxxxxx LLPXxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesRepresentatives on behalf of the Underwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer and the Executive Vice President and Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since September 30, 1998, the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has not been, singularly or in the aggregate, any material adverse change in the properties, business, results of operations, financial condition, affairs or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Pricewaterhouse Coopers LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the statements under applicable accounting requirements of the captions "Risk Factors-- Our intellectual property Act and proprietary rights may be insufficient the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) nothing came to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of information included or incorporated by reference in the Registration Statement and the Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) in the Final Prospectus and the Company's Proxy Statement on Schedule 14A dated June 22, 1998, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. All references in this Section 6(g) to the Registration Statement or the Final Prospectus shall be deemed to include any amendment or supplement thereto made available and reviewed by such counsel, at the time date of the letter.
(h) At the Execution Time and at the Closing Date, Xxxxxx Xxxxxxxx LLP shall have furnished to the Representatives a letter or letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder and Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants and stating in effect that:
(i) based upon (x) their review, in accordance with standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information included in the Company's quarterly report on Form 10-Q for the three-month and nine-month periods ended September 30, 1998, included or incorporated by reference in the Registration Statement became effective and Final Prospectus and of the unaudited financial information included as an attachment to the letter or letters referred to in this paragraph for the year ended December 31, 1998, and the three months ended December 31, 1998, and (y) the procedures detailed in such letter with respect to the period subsequent to December 31, 1998, including the reading of the minutes and inquiries of certain officials of the Company who have responsibility for financial and accounting matters and certain other limited procedures requested by the Representatives and described in detail in such letter, nothing has come to their attention that causes them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus or included as an attachment to the letter or letters referred to in this paragraph do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to December 31, 1998, there were any increases, at all times subsequent thereto up a specified date not more than five business days prior to the date of the letter, in the long- term debt of the Company and its subsidiaries or decreases in the stockholders' equity of the Company or decreases in total current assets of the Company and its subsidiaries or any change in capital stock of the Company and its subsidiaries, as compared with the amounts shown on the Closing Date and on December 31, 1998 consolidated balance sheet included as an attachment to the letter or letters referred to in this paragraph or for the period from January 1, 1999, to such specified date there were any later date on which Option Stock are to be purchaseddecreases, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make as compared with the statements thereincorresponding period in the immediately preceding quarter, in light revenue, cost of revenue, operating earnings, EBITDA (as defined in the circumstances under Final Prospectus) or in total or per share amounts of net earnings, except in all instances for increases, changes or decreases set forth in such letter, in which they were madecase the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(3) the information included or incorporated by reference in the Registration Statement and the Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not misleading;in conformity with the applicable disclosure requirements of Regulation S-K; and
(ii) Such counsel knows they have performed certain other specified procedures as a result of no material actionwhich they determined that certain information of an accounting, suitfinancial or statistical nature (which is limited to accounting, claim financial or proceeding relating statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to patentsthe Registration Statement, patent rights and the information included or licensesincorporated by reference in the Company's Quarterly Reports on Form 10-Q for the periods ended March 31, trademarks 1998, June 30, 1998, and September 30, 1998, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. All references in this Section 6(h) to the Registration Statement or trademark rightsthe Final Prospectus shall be deemed to include any amendment or supplement thereto at the date of the letter.
(i) Subsequent to the Execution Time or, copyrightsif earlier, collaborative researchthe dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), licenses there shall not have been (i) any increase, change or royalty arrangements decrease specified in the letter or agreements letters referred to in paragraph (h) of this Section 6 or trade secrets(ii) any change, know-how or proprietary techniquesany development involving a prospective change, including processes and substances, owned by in or affecting the properties, business, results of operations, financial condition, affairs or business or operations prospects of the Company which are pending and its subsidiaries, taken as a whole, whether or threatened against not arising from transactions in the Company ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto) the effect of its officers which, in any case referred to in clause (i) or directors(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 Final Prospectus (exclusive of any supplement thereto).
(iiij) The Company is listed Subsequent to the Execution Time, there shall not have been (i) any decrease in the records rating of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act) or Applications. Such counsel is not aware (ii) any notice given of any material defect intended or potential decrease in form in the preparation any such rating or filing that such organization has under surveillance or review (other than any such notice with positive implications of the Applications on behalf a possible upgrading) its rating of the Company. To 's debt securities.
(k) The Securities shall have been listed and admitted and authorized for trading, subject to official notice of issuance, on the knowledge Nasdaq National Market, and reasonably satisfactory evidence of such counselactions shall have been provided to the Representatives.
(l) Prior to the Closing Date, the Applications are being pursued Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by thethe Representatives. Notice of such cancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Cravath, Swaine & Xxxxx, counsel for the Underwriters, at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Level 3 Communications 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx X. Xxxxx, General Counsel for the Company, to have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Representatives, substantially in the form set forth in Exhibit B.
(c) The Company shall have requested and caused Debevoise & XxxxxxXxxxxxxx, Professional Corporation, outside counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in substantially the form attached hereto as EXHIBIT A. In rendering such opinionset forth in Exhibit C.
(d) The Company shall have requested and caused Drinker Xxxxxx & Xxxxx LLP, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to outside New Jersey counsel for the Underwriters and (B) as to matters of factCompany, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References have furnished to the Prospectus in this paragraph (b) include any supplements thereto at Representatives their opinion, dated the Closing Date.Date and addressed to the Representatives, substantially in the form set forth in Exhibit D.
(ce) The Representatives shall have received from Xxxxxxx Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the 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.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman or Vice Chairman of the Board or the President and the principal financial or accounting officer or the treasurer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused both Xxxxxxxx Ernst & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Young LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the effect meaning of the Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 2003, and as at March 31, 2003, in accordance with Statement on Auditing Standards No. 100, and stating in effect, except as provided in Schedule I hereto, that:
(i) As in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the statements under comments set forth in such letter; a reading of the captions "Risk Factors-- Our intellectual property minutes of the meetings of the stockholders, directors and proprietary rights may be insufficient the executive, finance and audit committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to protect our competitive position" transactions and "--We may be subject events subsequent to intellectual property rights disputes which could divert management's March 31, 2003, nothing came to their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of that:
(A) any unaudited financial statements included or incorporated by reference in the Registration Statement and any amendment the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or supplement thereto made available incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and reviewed said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by such counsel, at the time reference in the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingFinal Prospectus;
(iiB) Such counsel knows with respect to the period subsequent to March 31, 2003, there were any increases, at a specified date not more than five days prior to the date of no material actionthe letter, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, knowin the long-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations term debt of the Company which are pending and its subsidiaries or threatened against decreases in the shareholders' equity of the Company as compared with the amounts shown on March 31, 2003 consolidated balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from April 1, 2003 to May 31, 2003 there were any decreases, as compared with the corresponding period in the preceding year, in total revenues or premiums earned of the Company and its officers subsidiaries, except in all instances for changes or directors.decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or
(C) the information included or incorporated by reference in the Registration Statement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent Company and Trademark Office its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions "Summary Historical Financial Data" and "Capitalization" in the Final Prospectus, the information included or incorporated by reference in Items 5-8 and 10-13 inclusive of the Company's Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Final Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph 6(g) include any supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Final Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the holder of record of Representatives may reasonably request.
(j) Subsequent to the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselExecution Time, there are no claims shall not have been any decrease in the rating of third parties to any ownership interest or lien with respect to any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or Applications. Such counsel is not aware any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Company shall have used commercially reasonable best efforts to furnish, at the Execution Time, and the Company shall have furnished, on or prior to the Closing Date, to the Representatives a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material defect 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 in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx, counsel for the Applications are being pursued by theUnderwriters, at 000 Xxxxxxxxx Xxxxxx, xx the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Chubb Corp)
Conditions to the Obligations of the Underwriters. The -------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx King & Xxxxxx, Professional CorporationSpalding, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements Company has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement jurisdiction in which it is chartered or organized, with full corporate power and any amendment or supplement thereto made available authority to own its properties and reviewed by such counselconduct its business as described in the Final Prospectus; and the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingas amended;
(ii) Such counsel knows each subsidiary constituting 10% or more of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations assets of the Company which as of such date (each such subsidiary being hereinafter referred to as a "Significant Subsidiary") that is a national banking association holds a valid Certificate of Authority from the Comptroller to do business as a national banking association under the laws of the United States; and all the issued shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued, are pending fully paid and (except, in the case of any national banking association, as provided in 12 U.S.C. (S) 55, as amended) non- assessable and (except as otherwise set forth in the Prospectus) are owned directly or threatened against indirectly by the Company, to such counsel's knowledge free and clear of liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of matters of fact upon certificates of officers of the Company or any of its officers or directors.subsidiaries, provided that such counsel shall state that they believe you and they are justified in relying upon such certificates);
(iii) The each other Significant Subsidiary of the Company has been duly incorporated and is listed validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and nonassessable and (except as otherwise set forth in the records Prospectus) are owned directly or indirectly by the Company, to such counsel's knowledge free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the United States Patent opinion in this clause upon opinions of local counsel and Trademark Office as the holder in respect of record matters of fact upon certificates of officers of the patents listed Company or its subsidiaries, provided that such counsel shall state that they believe that you and they are justified in relying upon such opinions and certificates);
(iv) the Company's authorized equity capitalization is as set forth in the Final Prospectus; [and] the Securities conform in all material respects to the description thereof contained in the Final Prospectus; [the Securities are duly listed, and admitted and authorized for trading subject to official notice of issuance [and evidence of satisfactory distribution] on the Stock Exchange], and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(v) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a schedule legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to such opinion (enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the "Patents") Securities have been duly authorized and, when executed and each authenticated in accordance with the provisions of the applications listed on a schedule Indenture and delivered to such opinion and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(the "Applications"). To vi) to the knowledge of such counsel, there are is no claims of third parties to pending or threatened action, suit or proceeding by or before any ownership interest court or lien with respect to governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Patents or Applications. Such counsel Registration Statement which is not aware of any material defect in form adequately disclosed in the preparation Final Prospectus, and there is no franchise, contract or filing other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; [and the statements included or incorporated by reference in the Final Prospectus under the heading[s] "Tax Matters", "Regulatory Matters" and " "[if the Final Prospectus contains a discussion of specific legal or regulatory matters or proceedings, add references to appropriate sections of the Applications on behalf of Final Prospectus] fairly summarize the Company. To the knowledge of such counsel, the Applications are being pursued by thematters therein described;]
Appears in 1 contract
Samples: Underwriting Agreement (National Commerce Bancorporation)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the 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, and to the performance by the Company of its obligations hereunder hereunder. In addition, the obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationXxxxxx LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and to such counsel's knowledge is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect;
(ii) the Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the statements description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities are duly listed, and admitted and authorized for trading on the Nasdaq National Market (based upon oral conversations counsel has had with authorized representatives of the Nasdaq National Market) and approved for listing on the New York Stock Exchange; the certificates for the Securities are in valid and sufficient form under the captions laws of Texas; to such counsel's knowledge, the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, to such counsel's knowledge no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus under the headings "Risk Factors-- Our intellectual property Management's Discussion and proprietary rights may be insufficient to protect our competitive positionAnalysis of Financial Condition and Results of Operations Other Issues Environmental", "Certain U.S. Federal Tax Considerations for Non-United States Holders of Common Stock" and "--We may be subject Description of Capital Stock" fairly summarize the matters therein described;
(iv) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to intellectual property rights disputes which could divert management's attention Rule 424(b) has been made in the manner and could be costly" and "Business-- Intellectual Property," nothing has come within the time period required by Rule 424(b); to the attention knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened; and in a separate letter addressed to the Underwriters counsel which caused them shall state that in addition to believe that rendering legal advice and assistance to the above-mentioned sections Company in the course of the preparation of the Registration Statement and any amendment or supplement thereto made available the Prospectus, involving, among other things, discussion and reviewed by such counselinquiries concerning certain legal matters and the review of certain corporation records, documents and proceedings, it also participated in conferences with certain certified public accountants and with the Underwriters and Underwriters' counsel at which the time contents of the Registration Statement became and the Prospectus and related matters were discussed and that it has not, however, independently checked or verified the accuracy, completeness or fairness of the information contained in the Registration Statement and Prospectus but that based upon such participation counsel confirms that counsel has no reason to believe that (except for financial statements and schedules and other financial and statistical data included or incorporated by reference therein as to which such counsel expresses no belief) the Registration Statement, as of its effective and at date, did not comply as to form in all times subsequent thereto up to and on material respects with the Closing Date and on any later date on which Option Stock are to be purchased, requirements of the Act or contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that (except for financial statements and schedules and other financial and statistical data included or incorporated by reference therein as to which such counsel expresses no belief) the Prospectus or any amendment or supplement thereto, as of its respective date, and as of the Closing date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such misleading and for the purposes of this paragraph, it is understood that such statement of counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights documents incorporated by reference in the Prospectus shall relate to such incorporated documents (except for financial statements and schedules and other financial and statistical data included or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned incorporated by or affecting the business or operations reference therein) as of the Company which are pending or threatened against the Company or any date of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to filing such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by thedocuments;
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree Representative agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & XxxxxxHxxxxx and Bxxxx, Professional CorporationLLP, counsel for the Company, to have furnished to the Representatives Representative their opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, to the effect that:
(i) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance, except for such security interest, claim, lien or encumbrance arising out of the Company’s existing credit facilities;
(ii) the Company’s authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Final Prospectus; and the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable;
(iiii) the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance, on the New York Stock Exchange; the certificates for the Securities are in valid and sufficient form; the holders of the outstanding shares of capital stock of the Company are not entitled to any preemptive or other rights to subscribe for the Securities; and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Final Prospectus under the heading “Legal Proceedings,” insofar as such statements summarize legal matters, agreements, documents, or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.
(v) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in substantially the form attached hereto light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial information contained therein, as EXHIBIT A. to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions contemplated herein, nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties; and
(x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the general corporate law of the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Samples: Underwriting Agreement (HCC Insurance Holdings Inc/De/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Adviser contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company or the Adviser of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives Underwriters agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the total public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the total public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b)497, the Prospectus, and any such supplement, will be 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 order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatened, and any request of the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with in all material respects.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Pxxx, Hxxxxxxx, Jxxxxxxx & Xxxxxx, Professional CorporationWxxxxx LLP, counsel for the Company, to have furnished to the Representatives Underwriters their opinion, dated the Closing Date and addressed to the Representativesyou, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws Underwriters of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the several Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As Based solely on a review of good standing certificates of the Secretary of State of California and the State Department of Assessments and Taxation of Maryland, the Company is duly qualified to do business and is in good standing under the laws of each such jurisdiction;
(ii) To the knowledge of such counsel, there is no pending contemplated or threatened action, suit or proceeding by or before any federal or state court or governmental agency, authority or body or any arbitrator involving the Company or its property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus;
(iii) The Registration Statement was declared effective under the 1933 Act as of the date and time specified in such opinion (which opinion is based solely on telephonic advice received by such counsel from the Commission), the Prospectus was filed with the Commission pursuant to Rule 497 of the 1933 Act Rules and Regulations on the date specified in such opinion and to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention knowledge of such counsel, based solely on telephonic advice received by such counsel which caused them to believe that from the above-mentioned sections Commission, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose is pending or threatened by the Commission;
(iv) The Registration Statement and the Prospectus and any further amendments or supplements thereto made by the Company prior to the Closing Date (except for the financial statements and related schedules therein, as to which such counsel need express no belief) comply as to form in all material respects with the requirements of the 1933 Act, the 1940 Act and the Rules and Regulations;
(v) The Company is not (i) in violation of its Charter or Bylaws, (ii) in default, and no event has occurred which, with notice or lapse of time or both, would constitute such default, in the due performance or observance of any term, covenant or condition contained in any material instrument or agreement which is listed on Exhibit A to such opinion, or
(iii) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any material license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), such defaults, events, violations or failures that in the aggregate would not reasonably be expected to have a Material Adverse Effect;
(vi) To such counsel’s knowledge, there are no contracts, agreements, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or filed as exhibits to the Registration Statement by the 1933 Act, the 1940 Act or by the Rules and Regulations which have not been described in the Registration Statement or the Prospectus or filed as exhibits to the Registration Statement;
(vii) The execution, delivery and performance of this Agreement and each of the Company Agreements have been duly authorized by all necessary corporate action on the part of the Company, and this Agreement and each of the Company Agreements have been duly executed and delivered by the Company and constitute the valid and legally binding agreements of the Company, and each of the Company Agreements are enforceable against the Company in accordance with their terms, except as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless of whether enforcement is considered in a proceeding in equity or at law;
(viii) This Agreement and the Company Agreements comply in all material respects with all applicable provisions of the 1940 Act, the Advisers Act, the 1940 Act Rules and Regulations and the Advisers Act Rules and Regulations;
(ix) To the best of such counsel’s knowledge, there are no contracts, agreements or understandings between Company and any person granting such person the right to require the Company to file a registration statement under the 1933 Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the 1933 Act;
(x) The Company is duly registered with the Commission under the 1940 Act as a closed-end, management investment company and the 1940 Act Notification has been duly filed with the Commission, and, at the time of filing thereof and at the time of filing any amendment or supplement thereto through the date of the opinion, conformed in all material respects with all applicable provisions of the 1940 Act and the 1940 Act Rules and Regulations and, to the best of such counsel’s knowledge after reasonable inquiry, the Company has not received any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement (or any amendment or supplement to either of them through the date of the opinion);
(xi) All required action has been taken by the Company under the 1933 Act, the Exchange Act and the 1940 Act to make the public offering and consummate the sale of the Securities pursuant to this Agreement; the provisions of the Charter and Bylaws of the Company comply as to form in all material respects with the requirements of the 1940 Act; the provisions of the Charter and Bylaws of the Company and the investment policies and restrictions described in the Prospectus under the heading “Investment Objective and Policies” comply in all material respects with the requirements of the 1940 Act;
(xii) The statements made in the Registration Statement and the Prospectus (and any amendment or supplement thereto made available through the date of the opinion) under the caption “Tax Matters” and reviewed by in the Statement of Additional Information under the caption “Tax Matters” insofar as they purport to constitute summaries of legal matters, agreements, documents or proceedings discussed therein, accurately and fairly summarize such counsellegal matters, at agreements, documents or proceedings described therein in all material respects;
(xiii) None of the time issue and sale of the Registration Statement became effective and at all times subsequent thereto up to and Securities being delivered on the Closing Date by the Company pursuant to this Agreement, the execution, delivery and performance by the Company of this Agreement, the performance by the Company of each of the Company Agreements or the consummation of the transactions contemplated hereby and thereby (i) conflict with, result in the creation or imposition of any lien, charge or encumbrance upon the assets of the Company under the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, or (ii) result in the violation of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of their properties or assets, except such conflicts, breaches or violations that in the aggregate would not reasonably be expected to have a Material Adverse Effect; and
(xiv) No consent, approval, authorization or order of, or filing or registration with, any federal or California governmental agency or body, or to such counsel’s knowledge, any California or United States federal court, is required for the execution, delivery and performance of this Agreement, the performance of the Company Agreements by the Company or the consummation of the transactions contemplated hereby, except for (a) those that have been made or obtained under the Acts, (b) those under state securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus (as to which such counsel expresses no opinion), (c) any necessary approval of the Corporate Financing Department of NASD Regulation, Inc. (as to which such counsel expresses no opinion), and (d) such other approvals (specified in such opinion) as have been obtained. Such counsel shall also state that, although such counsel has not independently verified and is not passing upon and does not assume responsibility, explicitly or implicitly, for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus (except as to the extent expressly stated in the opinion of such counsel), such counsel has no reason to believe (i) that on any later the Effective Date or the date on which Option Stock are to be purchased, the Registration Statement was last deemed amended the Registration Statement contained any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) that the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed that the Disclosure Package as of the Time of Sale included any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the records light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion). In rendering such opinion, Pxxx, Hxxxxxxx, Jxxxxxxx & Wxxxxx LLP (A) may state that they express no opinion as to the laws of any jurisdiction other than the laws of the State of California and the federal laws of the United States Patent and Trademark Office of America, (B) may rely as to matters involving the holder of record laws of the patents listed State of Maryland upon the opinion of Vxxxxxx LLP referred to in paragraph (c) of this Section 7 and (C) may rely, as to matters of fact, upon the representations and warranties made by the Company and the Adviser herein and on a schedule certificates and written statements of officers and employees of and accountants for the Company and the Adviser and of public officials. Except as otherwise specifically provided herein, when giving their opinions to such opinion (the "Patents") and each their “knowledge”, Pxxx, Hxxxxxxx, Jxxxxxxx & Wxxxxx LLP has relied solely upon an inquiry of the applications listed attorneys of that firm who have worked on a schedule to such opinion (matters for the "Applications"). To the knowledge Company, on certificates or written statements of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any officers of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing Company and, where appropriate, a review of the Applications on behalf Registration Statement, the Disclosure Package, the Prospectus, exhibits to the Registration Statement, the Charter and Bylaws of the Company. To Company and a review of the knowledge minute books of such counsel, the Applications are being pursued by theCompany and have made no other investigation or inquiry.
Appears in 1 contract
Samples: Underwriting Agreement (Kayne Anderson Energy Total Return Fund, 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York, New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York, New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York, New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Skadden, Arps, Slate, Xxxxxxx Xxxxxxxx & XxxxxxXxxx LLP, Professional Corporation, special counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in substantially the form of EXHIBIT A attached hereto hereto. In rendering the opinion contained in EXHIBIT A, such counsel may rely as EXHIBIT A. 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 Lahive and Xxxxxxxxx, LLP, special patent counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that the statements contained in (A) the "RISK FACTORS" section of the Prospectus under the caption "IF WE ARE UNABLE TO OBTAIN AND ENFORCE VALID PATENTS, WE COULD LOSE OUR COMPETITIVE ADVANTAGE," and (B) the "BUSINESS" section of the Prospectus under the captions "TECHNOLOGY LICENSES," "PATENTS AND PROPRIETARY RIGHTS," and "LEGAL PROCEEDINGS," in each case, insofar as such statements constitute matters of law or legal conclusions or summarize legal or regulatory matters or proceedings, have been reviewed by them and are accurate and fair descriptions of such matters of law or legal conclusions or summaries of such legal or regulatory matters or proceedings. In rendering such opinion, opinion such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State Commonwealth of Delaware Massachusetts or the Federal federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(cd) The Company shall have requested and caused Xxxxx Xxxxxx & XxXxxxxx P.C., special regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that the statements contained in (A) the "RISK FACTORS" section of the Prospectus under the caption "IF OUR CLINICAL TRIALS ARE NOT SUCCESSFUL, OR IF WE ARE OTHERWISE UNABLE TO OBTAIN AND MAINTAIN REGULATORY APPROVAL REQUIRED TO MARKET AND SELL OUR PRODUCTS, WE WOULD INCUR INCREASING OPERATING LOSSES" AND (B) the "BUSINESS" section of the Prospectus under the caption "GOVERNMENT REGULATION," insofar as such statements constitute matters of law or legal conclusions or summarize legal or regulatory matters or proceedings, have been reviewed by them and are accurate and fair descriptions of such matters of law or legal conclusions or summaries of such legal or regulatory matters or proceedings.
(e) The Representatives shall have received from Xxxxxxx Xxxxxxx Xxxxxxx, Procter & Xxxxxxxx Xxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by (i) the Chief Executive Officer and President of the Company and (ii) the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused both Xxxxxxxx Ernst & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Young LLP to have furnished to the Representatives their opinionletters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; 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 statements under comments set forth in such letter; a reading of the captions "Risk Factors-- Our intellectual property minutes of the meetings of the stockholders, directors and proprietary rights may be insufficient audit and compensation committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to protect our competitive position" transactions and "--We may be subject events subsequent to intellectual property rights disputes which could divert management's December 31, 1999, nothing came to their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that that:
(1) with respect to the above-mentioned sections period subsequent to December 31, 1999, there were any changes, at a specified date not more than five days prior to the date of the letter, in the capital stock of the Company or decreases in the stockholders' equity of the Company as compared with the amounts shown on the December 31, 1999 balance sheet included in the Registration Statement and the Prospectus; or for the period from January 1, 2000 to such specified date there were any amendment decreases, as compared with the period from January 1, 1999 to __________ 1999 in income before income taxes or supplement thereto made available and reviewed in total or per share amounts of net income of the Company, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by such counsel, at an explanation by the time Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(2) the information included in the Registration Statement became effective and at all times subsequent thereto up Prospectus in response to and on Regulation S-K, Item 301 (Selected Financial Data), is not in conformity with the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement applicable disclosure requirements of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, knowRegulation S-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.K.
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent Company) set forth in the Registration Statement and Trademark Office the Prospectus, including the information set forth under the captions "SELECTED FINANCIAL DATA" and "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS" in the Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified pursuant to paragraph (g)(ii)(1) in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in 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) and the Prospectus (exclusive of any supplement thereto).
(i) On or prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications")Representatives may reasonably request. To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to If any of the Patents or Applications. Such counsel is conditions specified in this Section 6 shall not aware of any have been fulfilled in all material defect respects when and as provided in form in the preparation or filing this Agreement, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx, Procter & Xxxx LLP, counsel for the Applications are being pursued by theUnderwriters, at Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Praecis Pharmaceuticals Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, Shares shall be subject to the accuracy of the representations and warranties on the part of the Company Fund and the Advisers contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company Fund and the Advisers made in any certificates pursuant to the provisions hereof, to the performance by the Company Fund or the Advisers of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the total public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the total public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b)497, the Prospectus, and any such supplement, will be 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 order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Fund, the Advisers or any Underwriter, threatened, and any request of the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with in all material respects.
(b) The Company Fund shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationXxxxx, Xxxxxxx & Xxxxxxxx, P.C., special counsel for the CompanyFund and the Investment Adviser, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements The Fund (A) has been duly formed and is validly existing under the captions Declaration of Trust and the laws of the Commonwealth of Massachusetts as a voluntary association with transferable shares of beneficial interest, commonly referred to as a "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual PropertyMassachusetts business trust," nothing has come to (B) is in good standing with the attention of such counsel which caused them to believe that the above-mentioned sections Secretary of the Registration Statement Commonwealth of Massachusetts, and any amendment or supplement thereto made available (C) has full power and reviewed by such counselauthority as a business trust, at the time the Registration Statement became effective to own, lease and at all times subsequent thereto up operate its properties and to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements thereinconduct its business, in light of each case as described in the circumstances under which they were made, not misleadingPreliminary Prospectus and the Prospectus;
(ii) Such counsel knows The Common Shares have been duly authorized by the Fund and are validly issued, fully paid and nonassessable, except that, as set forth in the Registration Statement, shareholders of no material actiona Massachusetts business trust may under certain circumstances be held liable for its obligations, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark and are free of any statutory preemptive rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.;
(iii) The Company is listed Shares have been duly authorized by the Fund for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered to the Underwriters against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable, except that, as set forth in the records Registration Statement, shareholders of a Massachusetts business trust may under certain circumstances be held liable for its obligations, and are free of any statutory preemptive rights. Except as set forth in the Declaration of Trust and the Statement, as of the United States Patent and Trademark Office as date hereof, there are no restrictions upon the holder transfer of record any Shares pursuant to the Declaration of Trust or By-Laws of the patents listed on a schedule Fund or, to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the best knowledge of such counsel, there are no claims any agreement or other outstanding instrument to which the Fund is a party; and the specimen share certificates comply as to form with all requirements of third parties to any ownership interest or lien with respect to any Massachusetts law;
(iv) The description of the Patents or Applications. Such counsel is not aware authorized Common Shares of any material defect in form the Fund contained under the caption "Description of Common Shares" in the preparation or filing Preliminary Prospectus and the Prospectus conforms in all material respects as to legal matters to the terms thereof contained in the Declaration of Trust and Statement. The statements in the Applications on behalf of first two paragraphs under the Company. To the knowledge of such counsel, the Applications are being pursued by caption "Certain Provisions in the
Appears in 1 contract
Samples: Underwriting Agreement (Nuveen Real Estate Income Fund)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx caused:
(i) XxXxxxxxx, Will & XxxxxxXxxxx, Professional Corporationspecial counsel for the Company, to have furnished to the Underwriters their written opinion addressed to the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, substantially in the form of Annex I hereto; and
(ii) Xxxxx Peabody LLP, counsel for the Company, to have furnished to the Representatives Underwriters their opinionwritten opinion addressed to the Underwriters, dated the Closing Date Date, in form and addressed substance reasonably satisfactory to the RepresentativesUnderwriters, substantially in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateAnnex II hereto.
(c) The Representatives shall have received from Xxxxxx Xxxxxx & Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property representations and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections warranties of the Registration Statement Company in this Agreement are true and any amendment or supplement thereto correct on and as of the Closing Date with the same effect as if made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on any later date on which Option Stock are its part to be purchased, contained any untrue statement of a material fact performed or omitted satisfied at or prior to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing Date;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting stop order suspending the business or operations effectiveness of the Company which are pending or threatened against Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company or any of its officers or directors.Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) The Company is listed in shall have requested and caused KPMG LLP to have furnished to the records Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the United States Patent and Trademark Office Representatives), dated respectively as the holder of record of the patents listed on a schedule to such opinion (the "Patents") Execution Time and each as of the applications listed on a schedule Closing Date, in form and substance satisfactory to such opinion (the "Applications"). To Representatives, containing statements and information of the knowledge of such counsel, there are no claims of third parties type customarily included in accountants’ “comfort letters” to any ownership interest or lien underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement and the Final Prospectus. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) The Company shall have requested and caused PricewaterhouseCoopers to have furnished to the Representatives, at the Execution Time, a letter, dated as of the Execution Time, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to Hardy included or incorporated by reference in the Registration Statement and the Final Prospectus. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) 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 paragraphs (e) through (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Final Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Patents Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Applications. Such counsel is not aware any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each person or entity that is identified on Schedule III hereto, addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material defect 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 in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Applications are being pursued by theUnderwriters, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Underwritten Securities and the Option Securities, as the case may be, shall Certificates will be subject to the 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 hereofSeller herein, to the accuracy of the statements of officers of the Company Seller made in any certificates pursuant to the provisions hereof, to the performance by the Company Seller of its obligations hereunder and to the following additional conditionsconditions precedent:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives Underwriters agree in writing to a later time, the Registration Statement will shall have become effective not later than (i) 6:00 PM P.M. New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM P.M. New York City time on such date or (ii) 9:30 AM 12:00 noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM P.M. New York City time on such date; .
(b) The Prospectus and any supplements thereto shall have been filed (if filing of required) with the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), Commission in accordance with the ProspectusRules and Regulations and Section 5(a) hereof, and any such supplementprior to the Closing Date, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Seller or threatenedyou, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law.
(bc) The Company On or prior to the Closing Date, you shall have requested received a letter, dated as of the Closing Date, of _________________, certified public accountants, substantially in the form of the drafts to which you have previously agreed and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxotherwise in form and substance satisfactory to you and your counsel.
(d) Subsequent to the execution and delivery of this Agreement or, Professional Corporationif earlier, counsel the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Trust, the Seller, the Company or Chrysler Corporation which, in the judgment of the Underwriters, materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of Chrysler Corporation or the Seller on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Certificates.
(e) You shall have received an opinion of _______________, Vice President and General Counsel of CFC and the Company, addressed to have furnished to you and the Representatives their opinionIndenture Trustee, dated the Closing Date and addressed satisfactory in form and substance to the Representativesyou and your counsel, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements CFC has been duly organized and is validly existing as a limited liability company in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement State of Michigan with full power and any amendment or supplement thereto made available authority (corporate and reviewed other) to own its properties and conduct its business as presently conducted by such counselit, at and to enter into and perform its obligations under this Agreement, the time Note Underwriting Agreement, the Registration Statement became effective Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement and the Administration Agreement, and had at all times subsequent thereto up times, and now has, the power, authority and legal right to acquire, own, sell and on service the Closing Date Standard Receivables and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;Fixed Value Receivables.
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes The Company has been duly organized and substances, owned by or affecting is validly existing as a limited liability company in good standing under the business or operations laws of the Company which are pending or threatened against State of Michigan with full power and authority (corporate and other) to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under the Company or any of its officers or directorsTrust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments.
(iii) The Each of CFC and the Company is listed duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Standard Receivable or Fixed Value Receivable unenforceable by the Seller, the Owner Trustee or the Indenture Trustee.
(iv) The direction by the Seller to the Owner Trustee to authenticate the Certificates has been duly authorized by the Seller and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered and paid for pursuant to this Agreement, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).
(v) The direction by the Seller to the Indenture Trustee to authenticate the Notes has been duly authorized by the Seller, and when the Notes have been duly executed and delivered by the Owner Trustee and authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to the Note Underwriting Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).
(vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, and the Administration Agreement have been duly authorized, executed and delivered by CFC and are legal, valid and binding obligations of CFC enforceable against the CFC in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(vii) This Agreement and the Note Underwriting Agreement have been duly authorized, executed and delivered by the Seller.
(viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(ix) Neither the transfer of the Standard Receivables and the Fixed Value Receivables from the Seller to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the records Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of the United States Patent Note Underwriting Agreement, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Trademark Office Servicing Agreement or the Administration Agreement by CFC, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in the Note Underwriting Agreement, this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding the Note Underwriting Agreement and this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by CFC, the Company or the Trust, as the holder of record case may be, will conflict with, or result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the patents listed articles of incorporation or bylaws of the Seller or the Company, or of any indenture or other agreement or instrument to which the Seller or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to the Seller or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them.
(x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by CFC of its obligations under, or the validity or enforceability of, the Note Underwriting Agreement, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or, (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement.
(xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any agreement to which the Seller or the Company is a party or by which either of them is bound, which default is or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Seller and its subsidiaries, taken as a schedule whole.
(xii) Nothing has come to such opinion counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the "Patents"Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) CFC contained in this Agreement, the Note Underwriting Agreement, the Trust Agreement or the Sale and Servicing Agreement are other than as stated therein.
(xiii) The Seller is the sole owner of all right, title and interest in, and has good and marketable title to, the Standard Receivables and Fixed Value Receivables and the other property to be transferred by it to the Trust. The assignment of the Standard Receivables and Fixed Value Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to
(xiv) Immediately prior to the transfer of the Standard Receivables and Fixed Value Receivables to the Trust, the Seller's interest in the Standard Receivables and Fixed Value Receivables, the security interests in the Financed Vehicles securing the Standard Receivables and Fixed Value Receivables and the proceeds of each of the applications listed on foregoing was perfected and constituted a schedule perfected first priority interest therein.
(xv) The Indenture constitutes a grant by the Trust to such opinion (the "Applications"). To Indenture Trustee of a valid security interest in the knowledge Standard Receivables and Fixed Value Receivables, the security interests in the Financed Vehicles securing the Standard Receivables and Fixed Value Receivables and the proceeds of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any each of the Patents or Applications. Such counsel is not aware of any material defect in form in foregoing, which security interest will be perfected upon the preparation or filing of the Applications on behalf UCC-1 financing statements with the Secretary of State of the CompanyState of Michigan and the State of Delaware and will constitute a first priority perfected security interest therein. To No filing or other action, other than the knowledge filing of the UCC-1 financing statements with the Secretary of State of the State of Michigan and the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Standard Receivables and Fixed Value Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties.
(xvi) The Standard Receivables and Fixed Value Receivables are chattel paper as defined in the UCC.
(xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto).
(xviii) The statements in the Prospectus under the heading "Certain Legal Aspects of the Receivables", to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects.
(xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Securities", "Securities Offered" and "Principal Documents", insofar as such statements constitute a summary of the Certificates, the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such counsel, the Applications are being pursued by thedocuments.
Appears in 1 contract
Samples: Certificate Underwriting Agreement (Daimlerchrysler Services North America LLC)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the 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 and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & X. Xxxxxx, Professional Corporation, counsel for General Counsel of the Company, to have furnished furnish to the Representatives their his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As i. each of the Company's Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate, its properties and conduct its business as described in the Final Prospectus;
ii. all the outstanding shares of capital stock of the Company and each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any security interest and, to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention knowledge of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on after due inquiry, any later date on which Option Stock are to be purchasedother security interests, contained any untrue statement of a material fact claims, liens or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingencumbrances;
(ii) Such counsel knows iii. the Company's authorized capitalization is as set forth in the Final Prospectus under the heading "Capitalization";
iv. to the knowledge of such counsel, without conducting a docket search, there is no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its officers subsidiaries or directors.
(iii) The Company its or their property that is listed not adequately disclosed in the records Final Prospectus, except in each case for such proceedings that, if the subject of an unfavorable decision, ruling or finding would not, singly or in the aggregate, result in a material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the United States Patent Company and Trademark Office its subsidiaries, taken as a whole; and the holder statements in the Final Prospectus under the heading "BusinessCLegal Proceedings" fairly summarize the matters therein described;
v. neither the execution and delivery of record this Agreement nor the consummation of any other of the patents listed on transactions herein contemplated, nor the fulfillment of the terms hereof, will conflict with, result in a schedule breach or violation of, or imposition of any lien, charge or encumbrance upon, any property or asset of the Company or its subsidiaries pursuant to (i) the charter or by-laws of the Company's subsidiaries, or (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its respective property is subject which is known to such opinion (counsel;
vi. the statements in the Final Prospectus under the captions "Patents") and each Risk Factors B The Heavy Regulation of the applications listed on a schedule Telecommunications Industry May Limit the Development of Our Networks and Affect Our Competitive Position" and "BusinessBRegulation" to such opinion (the "Applications")extent that they discuss U.S. federal, state, and local telecommunications statutes and regulations or legal or governmental proceedings of the FCC and state and local governments with respect to telecommunications regulatory matters, fairly summarize the matters referred to therein in all material respects;
vii. To neither the execution and delivery of this Agreement by the Company nor the performance by the Company of its obligations under this Agreement will violate the Communications Act or the State Telecommunications Laws; and
viii. to the knowledge of such counsel, (A) the Company and its subsidiaries have in effect all the U.S. federal and state telecommunications regulatory licenses, permits, authorizations, consents, and approvals (hereinafter, "Licenses") required to conduct their respective businesses as presently conducted; (B) all such Licenses have been validly issued and are in full force and effect; (C) no determination has been made by the FCC or any State Regulatory Agency that the Company or any subsidiary is in violation of any such Licenses, and no proceeding is pending before any such agency in which any such violation has been alleged; and (D) no proceedings by the FCC or any State Regulatory Agency to revoke or restrict any such Licenses are pending or threatened. "Validly issued" as used in this paragraph means that the Licenses have been issued through the means of regular agency procedures applied in conformity with the applicable governing statute and prior agency practice and there are is no claims of third parties legal basis under the applicable governing statute to conclude that the Company or any ownership interest subsidiary cannot hold one or lien with respect to any more of the Patents Licenses as a matter of law. "Full force and effect" as used in this paragraph means (i) the orders issuing the Licenses have become effective under the applicable governing statute, (ii) the Licenses contain no conditions that would have a material adverse effect on the Company's or Applications. Such counsel is not aware of any material defect in form subsidiary's operations except for such conditions imposed generally by the agency, (iii) all conditions precedent set forth in the preparation or filing of Licenses have been satisfied where the Applications failure to satisfy such conditions would have a material adverse effect on behalf of the Company. To the knowledge 's or any subsidiary's ability to conduct their respective businesses as they are presently conducted, and (iv) no stay of such counsel, the Applications are being pursued by theeffectiveness has been issued.
Appears in 1 contract
Samples: Underwriting Agreement (Metromedia Fiber Network 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 beif applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein in this Agreement as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder under this Agreement and to the following additional conditions:
(ai) If the Registration Statement has and the ADR Registration Statement have not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement and the ADR Registration Statement will become effective not later than (ia) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (iib) 9:30 AM New York City time on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bii) The On the Closing Date, the Company shall have requested and caused Xxxxx Xxxx & Xxxxxxxx, United States counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date, to the effect set forth in Exhibit A hereto.
(iii) On the Closing Date, the Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & XxxxxxVecchi, Professional Corporation, ROC counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in substantially Exhibit B hereto.
(iv) On the form attached hereto as EXHIBIT A. In rendering such opinionClosing Date, such the Depositary shall have requested and caused Patterson, Belknap, Xxxx & Tyler LLP, counsel may rely (A) as for the Depositary, to matters involving have furnished to the application of laws of any jurisdiction other than Representatives their opinion dated the State of Delaware or Closing Date and addressed to the Federal laws of the United StatesRepresentatives, to the extent they deem proper effect that:
(a) The Deposit Agreement has been duly authorized, executed and specified delivered by the Depositary and assuming due authorization, execution and delivery thereof by the Company, constitutes a legal, valid and binding instrument enforceable against the Depositary 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, accordance with its terms except to the extent they deem properthat (a) enforcement thereof may be limited by (1) bankruptcy, on certificates reorganization, insolvency (including, without limitation, all laws relating to fraudulent transfer), moratorium or other laws now or hereafter in effect relating to or affecting creditors’ rights generally and (2) general principles of responsible officers equity (regardless of the Company whether enforceability is considered in a proceeding in law or in equity), and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at rights to indemnity and contribution thereunder may be limited by U.S. federal or state securities laws or public policy; the Closing Datestatements in the Prospectus under the heading “Description of American Depositary Shares,” insofar as such statements purport to describe the Depositary and summarize certain provisions of the Deposit Agreement, the ADSs and the ADRs, are fair and accurate.
(b) The Depositary has full power and authority and legal right to execute and deliver the Deposit Agreement and to perform its obligations thereunder.
(c) The ADRs and the ADSs evidenced thereby, when issued by the Depositary against deposit of a Certificate of Payment in accordance with the terms and conditions of the Deposit Agreement and the ADR Registration Statement will be duly and validly issued and will entitle the holders and beneficial owners thereof to the rights specified therein and in the Deposit Agreement.
(d) The ADR Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the ADR Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened, and the ADR Registration Statement, and each amendment comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder.
(v) On the Closing Date, the Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, United States counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ADR Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(dvi) The Company On the Closing Date, the Representatives shall have requested and caused both Xxxxxxxx received from Chen & Xxxxxxxx and Xxxxx Xxxxxx & XxxxxxLin, LLP, intellectual property counsels ROC counsel for the CompanyUnderwriters, to have furnished to the Representatives their opinionsuch opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the ADR Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(vii) On the Closing Date, the Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the ADR Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(ia) As The representations and warranties of the Company in the Underwriting Agreement are true and correct on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Underwriting Agreement at or prior to the statements under Closing Date.
(b) No stop order suspending the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections effectiveness of the Registration Statement or the ADR Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened.
(c) Since the date of the most recent financial statements included in the Prospectus (exclusive of any amendment supplement thereto), there has not been any change, or any development involving a prospective change, that would have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto made available thereto).
(viii) The Company shall have requested and reviewed caused KPMG to have furnished to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, containing statements and other information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain other information contained or incorporated by such counsel, at the time reference in the Registration Statement became effective and at all times subsequent thereto up the Prospectus.
(ix) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), and the Prospectus (exclusive of any supplement thereto), there shall not have been (a) any change or decrease specified in the letter or letters referred to in paragraph (viii) of this Section 6 or (b) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (a) or (b) 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 ADR Registration Statement and the Prospectus (exclusive of any supplement thereto).
(x) The Deposit Agreement shall be in full force and effect.
(xi) The Depositary shall have furnished or caused to be furnished to the Representatives certificates satisfactory to the Representatives evidencing (i) the deposit with the Depositary of the Certificate of Payment in respect of which ADSs to be purchased by the Underwriters on the Closing Date and on any later date on which Option Stock are to be purchasedissued, contained (ii) the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing such ADSs pursuant to the Deposit Agreement, and (iii) such other matters related thereto as the Representatives reasonably request.
(xii) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(xiii) The ADSs shall have been supplementally listed and admitted and authorized for trading on the New York Stock Exchange, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
(xiv) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit C hereto from each of Xxxx-Xxx (K.Y.) Xxx, Xxxxx Bin (H.B.) Chen, Po-Xxx Xx, Xxx Xxxxxx, Xxx Xxxxx and BenQ Corporation, in each case addressed to the Representatives.
(xv) No order or notice, oral or written, from any untrue statement governmental or regulatory authority of the ROC, including the ROC SFC, has been received by the Company to the effect that the offering contemplated by this Agreement, if consummated, will contravene applicable laws or regulations of the ROC.
(xvi) Prior to the Closing Date, the Company shall have received from each of its employees entitled to subscribe to the Shares a written waiver of such employee’s right to subscribe to such Shares. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material fact respects when and as provided in this Agreement and shall not have been waived by the Representatives, or omitted 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 state a material fact the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters under this Agreement 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 stated therein or necessary to make delivered by this Section 6 shall be delivered at the statements thereinoffice of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, in light of counsel for the circumstances under which they were madeUnderwriters, not misleading;
(ii) Such counsel knows of no material actionat Asia Pacific Finance Tower, suit7th Floor, claim or proceeding relating to patents3 Garden Road Central, patent rights or licensesHong Kong, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting on the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsClosing Date.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Chief Legal Officer of the Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & XxxxxxXxxxxxxx LLP, Professional Corporation, special counsel for to the Company, to shall have furnished to the Representatives their opinionopinions, dated the Closing Date and addressed to the Representatives in form and substance satisfactory to the Representatives, in substantially the form forms attached hereto as EXHIBIT A. Annexes A and B, respectively. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of California, the corporate law of the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx Xxxxx, Xxxxx & Xxxxxxxx LLPXxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property representations and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections warranties of the Registration Statement Company in this Agreement are true and any amendment or supplement thereto correct in all material respects on and as of the Closing Date with the same effect as if made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on any later date on which Option Stock are its part to be purchased, contained any untrue statement of a material fact performed or omitted satisfied under this Agreement at or prior to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing Date;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting stop order suspending the business or operations effectiveness of the Company which are pending or threatened against Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company or any of its officers or directors.Company's knowledge, threatened; and
(iii) The Company is listed since the date of the most recent financial statements included or incorporated by reference in the records Prospectus (exclusive of any supplement thereto dated after the date hereof), there has been no Material Adverse Effect, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto dated after the date hereof).
(e) At the date hereof and at the Closing Date, Deloitte & Touche LLP and KPMG LLP shall each have furnished to the Representatives letters, dated respectively as of the United States Patent date hereof and Trademark Office as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating, as of such date hereof or the Closing Date, as the holder of record of the patents listed on a schedule to such opinion case may be, (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to either such date), the conclusions and findings of such firm with respect to the financial information and other matters as provided in SAS No. 72. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto dated after the date hereof), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto dated after the date hereof) 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) and the Prospectus (exclusive of any supplement thereto dated after the date hereof).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or Applications. Such counsel is not aware any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material defect 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 in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx, Xxxxx & Xxxxx, counsel for the Applications are being pursued by theUnderwriters, at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM New York City time on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationLLP, counsel for the Company, to have furnished to the Representatives their its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in substantially Annex B hereto. The Company shall have caused Xxxxxx X. Xxxxxxxx, Corporate Vice President-Corporate Development, General Counsel and Secretary of the form attached hereto as EXHIBIT A. In rendering such Company to have furnished to the Representatives his opinion, such counsel may rely (A) as dated the Closing Date and addressed to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United StatesRepresentatives, to the extent they deem proper and specified effect set forth in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateAnnex C hereto.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date pursuant to Section 3 hereof substantially in the form of Exhibit B hereto.
(e) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, to the effect set forth in Annex D hereto.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been included for quotation on the Nasdaq National Market and satisfactory evidence of such action shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter addressed to the Representatives to substantially in the effect that:form of Exhibit A hereto from each of the executive officers and directors of the Company and from an authorized officer of each of Advanced Micro Devices, Inc. and Fujitsu Limited.
(k) The closing of the purchase of the (i) As senior unsecured notes to be issued and sold by Spansion LLC pursuant to the statements under Purchase Agreement dated the captions "Risk Factors-- Our intellectual property date hereof among Spansion LLC, the Company, as guarantor, and proprietary rights the initial purchasers party thereto and (ii) Class A Common Stock to be issued and sold by the Company pursuant to the Common Stock Underwriting Agreement dated the date hereof between the Company and the underwriters party thereto (the “Common Stock Underwriting Agreement”) shall occur concurrently with the closing described herein. If any of the 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 insufficient to protect our competitive position" and "--We may cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come given to the attention Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of such Xxxxx Xxxx & Xxxxxxxx, counsel which caused them to believe that for the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counselUnderwriters, at the time the Registration Statement became effective and at all times subsequent thereto up to and 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsDate.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
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 furnished pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date date, or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have requested received the following legal opinions, dated the Closing Date, and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxotherwise in form and substance satisfactory to the Representatives, Professional Corporation, counsel for from the General Counsel of the Company, to have furnished the effect that:
(i) Each Significant Subsidiary is validly existing as a corporation or other legal entity, as the case may be, in good standing under the laws of the jurisdiction of its organization and, to the Representatives their opinionbest of such counsel's knowledge, dated each of the Company and each Significant Subsidiary is duly qualified to transact business as a foreign corporation or other legal entity, as the case may be, and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or be in good standing would not have a Material Adverse Effect.
(ii) Each Significant Subsidiary has the power and authority to own, lease and operate its properties and to conduct its business as currently conducted and as described in the Final Prospectus.
(iii) All of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and, except for directors' qualifying shares, if any, is owned directly or indirectly by the Company, free and clear of any security interest, whether or not perfected, lien, encumbrance or claim.
(iv) To the best of such counsel's knowledge, there are no legal or governmental proceedings before any court or governmental agency, authority or body or any arbitrator pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein.
(v) The execution and delivery by the Company of this Agreement and the Securities, the performance by the Company of its agreements herein and the issue and sale by the Company of the Securities will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary under any contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel and to which the Company or any Significant Subsidiary is a party or by which any of them are bound or to which any property or assets of the Company or any such Significant Subsidiary is subject.
(vi) The Company's authorized and outstanding equity capitalization is as set forth in the Final Prospectus as of the date or dates indicated herein; and the Securities conform in all material respects to the description thereof contained in the Final Prospectus.
(vii) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement.
(viii) The capital stock of the Company conforms in all material respects to the description thereof contained in the Final Prospectus, and the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; In addition, the General Counsel of the Company shall state that nothing has come to the attention of such counsel that leads him to believe that the Registration Statement (other than the financial statements and related schedules and other financial information included or incorporated by reference therein), at the time it became effective (or, if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time such amendment became effective or at the time of the most recent such filing, as the case may be) and at the date hereof and at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus (other than the financial statements and related schedules and other financial information included or incorporated by reference therein), at the date hereof and at the Closing Date and addressed (included or) includes an untrue statement of a material fact or (omitted or) omits to state a material fact necessary in order to make the Representativesstatements therein, in substantially the form attached hereto as EXHIBIT A. light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Delaware and Illinois or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or following legal opinions, dated the Closing Date Date, and addressed otherwise in form and substance satisfactory to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx from Xxxxxx Xxxxxx & XxxxxxXxxxx, LLP, intellectual property counsels counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to The Company and each Significant Subsidiary has been duly incorporated (or, in the statements case of a Significant Subsidiary that is not a corporation, duly formed or organized, as the case may be) and is validly existing in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement and any amendment jurisdiction of its incorporation (or, if applicable, formation or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;organization).
(ii) Such counsel knows of no material actionThe Company has corporate power and authority to own, suit, claim or proceeding relating lease and operate its properties and to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes conduct its business as described in the Final Prospectus and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of to enter into and perform its officers or directorsobligations under this Agreement.
(iii) The Company is listed duly qualified as a foreign corporation to transact business and is in good standing under the laws of the State of Illinois.
(iv) This Agreement has been duly and validly authorized, executed and delivered by the Company.
(v) The information in the records Final Prospectus under the captions "Description of Debt Securities," "Particular Terms of the United States Patent and Trademark Office as the holder of record Senior Debt Securities," "Particular Terms of the patents listed on a schedule Subordinated Debt Securities," "Description of Capital Stock," "Description of Warrants" and "Description of Stock Purchase Contracts and Stock Purchase Units" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such opinion counsel and is correct in all material respects.
(vi) The Registration Statement is effective under the "Patents") and each of Act and, to the applications listed on a schedule to such opinion (the "Applications"). To the knowledge best of such counsel's knowledge, there are no claims of third parties to any ownership interest or lien with respect to any stop order suspending the effectiveness of the Patents Registration Statement has been issued under the Act or Applications. Such counsel is not aware of any material defect in form in proceedings therefor initiated or threatened by the preparation or Commission; if filing of the Applications on behalf Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b).
(vii) At the time it became effective, the Registration Statement (other than the financial statements and related schedules and other financial information included or incorporated by reference therein) complied as to form in all material respects with the requirements of the CompanyAct.
(viii) The execution, delivery and performance by the Company of this Agreement, the performance by the Company of its agreements herein and the issue and sale by the Company of the Securities will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Significant Subsidiaries pursuant to, any Material Contract nor will such action result in any violation of the provisions of the charter or bylaws or comparable organizational documents of the Company or any of its Significant Subsidiaries or any law, administrative regulation or administrative or court order or decree known to such counsel to be applicable to the Company or any of its Significant Subsidiaries of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company or any of its Significant Subsidiaries. To For purposes of the knowledge preceding sentence, "Material Contract" shall mean each indenture, loan agreement, contract, agreement or arrangement, as each shall have been amended to the date of such counselopinion, filed as an exhibit to, or incorporated by reference in, the Applications are being pursued by themost recent Annual Report to the Commission on Form 10-K of the Company or any report filed since the date of such report with the Commission under Section 13 of the Exchange Act.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Applicable Time, the Closing Date and any settlement date the Option Closing Date, if applicable, pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Applicable Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Wxxxxx Xxxxxxx Xxxxxxxx & XxxxxxRxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in substantially Exhibit B.
(c) The Company shall have requested and caused Dxxxxxxxxx Dxxxxxxx Sxxxx Mxxxxx, Canadian counsel for the form attached hereto as EXHIBIT A. In rendering such Company, to have furnished to the Representatives their opinion, such counsel may rely (A) as dated the Closing Date and addressed to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United StatesRepresentatives, to the extent they deem proper effect set forth in Exhibit C.
(d) The Selling Stockholders shall have requested and specified in such opinioncaused Ropes & Gxxx LLP, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters Selling Stockholders, to have furnished to the Representatives their opinion dated the Closing Date and (B) as addressed to matters of factthe Representatives, to the extent they deem propereffect set forth in Exhibit D.
(e) The Selling Stockholders shall have requested and caused Dxxxxxxxxx Dxxxxxxx Sxxxx Mxxxxx, on certificates of responsible officers of Canadian counsel for the Company and public officials. References Selling Stockholders, to have furnished to the Prospectus in this paragraph (b) include any supplements thereto at Representatives their opinion dated the Closing Date.Date and addressed to the Representatives, to the effect set forth in Exhibit E.
(cf) The Representatives shall have received from Xxxxxxx Xxxxxxx Dxxxx Xxxx & Xxxxxxxx LLPWxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the General Disclosure Package and the Prospectus (together with any supplement theretoto any such document) and other related matters as the Representatives may reasonably require, and the Company and each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(dg) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement were true and correct as of the Applicable Time and are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the financial condition, 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 Prospectus (exclusive of any supplement thereto).
(1) Each Selling Stockholder identified with an asterisk on Schedule II hereto shall have duly authorized, executed and delivered the Custody Agreement, (2) each of Bxxx Capital Funds, Seneca Investments LLC and Cxxxxxx Xxxxxx shall have duly authorized, executed and delivered this Agreement and (3) each Selling Stockholder that is an executive officer or director of the Company or affiliated with any such executive officer or director shall have furnished to the Representatives a certificate, signed by such Selling Stockholder, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the General Disclosure Package and the Prospectus, any supplement to the Prospectus and this Agreement and that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused both Xxxxxxxx Deloitte & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Touche LLP to have furnished to the Representatives their opinionletters, at the date of this Agreement and at the Closing Date, dated respectively as of the date of this Agreement and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives as set forth in Exhibit F. The Company shall have requested and caused Bxxxx Axxxx LLP to have furnished to the Representatives, at the date of this Agreement and at the Closing Date, letters, dated respectively as of the date of this Agreement and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder stating in effect that:that in their opinion the audited financial statements and financial statement schedules of JobFlash, Inc. included in the Registration Statement, the General Disclosure Package and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission.
(j) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and Prospectus, there has not been (A) any change or decrease specified in the letter or letters referred to in paragraph (i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and this Section 6 or (B) any amendment material adverse change or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of development involving a prospective material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, adverse change in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business business, management, properties, assets, rights, operations, condition (financial or operations otherwise) or prospects of the Company which are pending and the Subsidiaries taken as a whole, whether or threatened against not arising in the Company or any ordinary course of its officers or directorsbusiness.
(iiik) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents in substantially the form previously provided to the Company.
(l) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(m) The Securities shall have been approved for listing on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(n) At the Applicable Time, the Company is listed shall have furnished to the Representatives a letter substantially in the records form of Exhibit A (a “Lock-up Agreement”) hereto, or in such other form approved by Deutsche Bank Securities Inc., from each officer and director of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") Company and each of the applications listed on a schedule Selling Stockholders addressed to such opinion (the "Applications")Representatives. To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to If any of the Patents conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or Applications. Such counsel is if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not aware of any material defect be reasonably satisfactory in form in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancellation shall be given to the Company and each Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Dxxxx Xxxx & Wxxxxxxx, counsel for the Applications are being pursued by theUnderwriters, at 1000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Taleo Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b), or if the filing of the Rule 434 Term Sheet is required pursuant to Rule 434, the Rule 434 Term Sheet will be filed in the manner and within the time period required by Rule 424(b)434; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx furnished to the Representatives the opinion of Edwaxxx & XxxxxxXngexx, Professional Corporation, counsel xxunsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to each of the statements Company and Fleet National Bank ("FNB") has been duly organized and is validly existing as a corporation or national banking association under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement jurisdiction in which it is organized, with full corporate power and any amendment or supplement thereto made available authority to own its properties and reviewed by such counsel, at conduct its business as described in the time Final Prospectus; the Registration Statement became effective Company is duly qualified to do business as a foreign corporation under the laws of the State of New York and at all times subsequent thereto up to the Commonwealth of Massachusetts and on neither the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact Company nor FNB is required to be stated therein or necessary qualified to make do business as a foreign corporation under the statements thereinlaws of any other jurisdiction, in light except to the extent that the failure to so qualify would not have a material adverse effect on the Company and its subsidiaries, considered as one enterprise; and the Company is duly registered as a financial holding company under the Bank Holding Company Act of the circumstances under which they were made1956, not misleadingas amended;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations all of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records outstanding shares of the United States Patent capital stock of FNB have been duly and Trademark Office validly authorized and issued and are fully paid and (except as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect provided in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the12 U.S.C.
Appears in 1 contract
Samples: Underwriting Agreement (Fleetboston Financial Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Shares and the Option SecuritiesShares, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Gross, Kleinhendler, Hodak, Halevy, Greenberg & XxxxxxCo., Professional Corporation, Israeli counsel for the xxx xxx Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements Company has been duly incorporated and is validly existing as a corporation under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement State of Israel, with full corporate power and any amendment authority to own or supplement thereto made available lease, as the case may be, and reviewed to operate its properties and conduct its business as described in the Prospectus; no proceeding has been instituted by such counsel, at the time Registrar of Companies in Israel for the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light dissolution of the circumstances under which they were made, not misleadingCompany;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus under the caption "Description of Share Capital"; the outstanding Ordinary Shares (including the Selling Shareholder Shares and the Option Shares) have been duly and validly authorized and issued and are fully paid and nonassessable (except, however, with respect to Future Shares, in which are pending or threatened against case such Future Shares shall be fully paid and nonassessable upon issuance, subject, in the case of warrants, to payment by the Selling Shareholders of the exercise price therefor); the Company Shares have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares; except as disclosed in the Registration Statement and the Prospectus, there are no restrictions upon the voting or transfer of any securities of its officers the Company pursuant to the Company's memorandum or directors.articles of association or, to the knowledge of such counsel after reasonable investigation, any agreements or other instruments to which the Company is a party or by which it is bound; and, except as set forth in the Prospectus, to the knowledge of such counsel after reasonable investigation, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are is no claims pending or threatened action, suit or proceeding by or before any Israeli court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary or its properties of third parties a character required to any ownership interest or lien with respect to any of be disclosed in the Patents or Applications. Such counsel Registration Statement which is not aware of any material defect in form adequately disclosed in the preparation Prospectus; and the statements in the Prospectus under the headings "Risk Factors--We could become subject to litigation regarding intellectual property rights or filing we may need to take steps to avoid infringing the intellectual property rights of others, increasing our costs or decreasing our sales," "Risk Factors--Under current U.S. and Israeli law, we may not be able to enforce covenants not to compete and therefore may be unable to prevent our competitors from benefiting from the Applications on behalf expertise of the Company. To the knowledge some of such counsel, the Applications are being pursued by theour former employees," "Risk Factors--The tax benefits available to us require us to meet several conditions and may be
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Shares and the Option SecuritiesShares, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein in this Underwriting Agreement 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 under this Underwriting Agreement and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM New York City time on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the U.S. Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the U.S. Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have filed the French Final Prospectus with the COB no later than [ ] following the determination of the public offering price and shall have received final approval from the COB of the French Final Prospectus by no later than [ ] following the date of determination of the public offering price, and no stop order or similar instruction from the COB or the ParisBourse with respect to the offering of the Shares or the use of the French Final Prospectus shall have been issued.
(c) The Company shall have requested and caused Xxxxxx Stibbe Simont Xxxxxxx Xxxxxxxx & XxxxxxDuhot, Professional Corporation, special Netherlands counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws Representatives on behalf of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements Company has been duly incorporated and is validly existing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to laws of The Netherlands as a legal entity in the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement form of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading"naamloze vennootschap";
(ii) Such counsel knows the Company has an authorized capitalization as set forth in the Prospectuses and the Underwritten Shares have been duly authorized and validly issued in accordance with the laws of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes The Netherlands and substances, owned by or affecting the business or operations provisions of the Company which articles of association applicable thereto and are pending fully paid and non-assessable, and the issuance of such shares is not subject to any preemptive or threatened against the Company or any of its officers or directors.similar rights;
(iii) the Option Shares have been duly authorized and will, when issued by the Company in a manner and on the terms as referred to in this Agreement, be validly issued in accordance with the laws of The Netherlands and the provisions of the articles of association applicable thereto, and subject to the payment by the Underwriters for Option Shares and the manner and on the terms as referred to in this Agreement, will be fully paid and non-assessable, and the issuance of such shares will not be subject to any pre-emptive or similar rights.
(iv) according to shareholders' register of the Company is listed the Shares are free of rights of pledge ("pandrecht") or rights of usufruct ("vruchtgebruik");
(v) the Company has the corporate power and authority to enter into and perform the obligations on its part to be performed under this Agreement, and the Company has the corporate power and authority to conduct its business as described in the records Prospectuses;
(vi) the execution and delivery by the Company of this Agreement and the performance by the Company of its obligations thereunder have been duly authorized by the Company;
(vii) to the extent governed by the laws of The Netherlands, this Agreement has been duly executed and delivered by the Company;
(viii) the execution and delivery by the Company of, and the performance by the Company of its obligations under this Agreement do not violate any provisions of the United States Patent and Trademark Office as the holder law of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest The Netherlands or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing provisions of the Applications on behalf articles of association of the Company. To ;
(ix) in order to ensure the knowledge legality, validity, enforceability or admissibility in evidence of this Agreement, it is not necessary that it be filed, recorded or enrolled with any public authority, governmental agency or governmental department of The Netherlands (excluding, for the avoidance of doubt, a court in connection with legal proceedings insofar as the enforceability and admissibility in evidence are concerned), or that any stamp, registration or similar tax or charge be paid in The Netherlands, except for certain court fees in connection with legal proceedings;
(x) the choice of New York law as the law expressed to be governing this Agreement will be recognized as the law governing this Agreement and accordingly the courts of The Netherlands should apply New York law as the law expressed to be governing this Agreement;
(xi) the submission to the jurisdiction of any state or federal court located in the Borough of Manhattan, The City of New York, New York (each a "New York Court") and/or the irrevocable waiver of any objection to the laying of venue of a proceeding in such court and of any immunity to jurisdiction of such counselcourt, to which it is or may become entitled, will, according to the Applications courts of The Netherlands duly applying New York law as the law governing this Agreement (including such submission and waiver), be valid and binding on the Company; and, except as described in the Prospectus, a judgment obtained in a New York Court arising out of or in relation to the obligations of the Company under this Underwriting Agreement would be enforceable against the Company in the courts of The Netherlands;
(xii) all authorizations, consents or approvals of, or registrations or filings with, any governmental department or regulatory authority of or within The Netherlands which are being pursued by therequired for the offer of the Shares have been obtained or made and are in full force and effect;
(xiii) the statements as to the laws of The Netherlands and the articles of association of the Company, in the Prospectus under the headings "Management --Supervisory Board and Board of Management," "Description of Capital Stock" (except for the statements under the subheadings "-- Description of equity registration and other rights" and "--private equity investors' registration rights" and "Share Certificates and Transfer," are correct in all material respects and the Shares conform to the description of the Shares in such statements and the articles of association of the Company;
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 Holdings 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 Holdings made in any certificates pursuant to the provisions hereof, to the performance by the Company and Holdings of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives Underwriters agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company and Holdings shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx caused, Porter, Wright, Morxxx & XxxxxxArtxxx, Professional Corporation, counsel xounsel for the Company, to have furnished to the Representatives Underwriters their opinion, dated the Closing Date and addressed to the RepresentativesUnderwriters to the effect set forth in Exhibit B in form and substance satisfactory to counsel for the Underwriters, in substantially together with signed or reproduced copies of such letter for each of the form attached hereto other Underwriters and addressed to the Underwriters and to such further effect as EXHIBIT A. counsel to the Underwriters may reasonably request. In rendering such opinion, such counsel may rely (A) assume as to matters involving the application of laws of any jurisdiction other than the State of Delaware Ohio, the State of Indiana or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon that the opinion laws of such other counsel jurisdiction are the same in all relevant respects as the laws of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters State of Ohio, and (B) rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives Underwriters shall have received from Xxxxxxx Xxxxxxx Cleary, Gottlieb, Stexx & Xxxxxxxx LLPHamxxxxx, counsel xounsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives Underwriters may reasonably require, and the Company Company, Holdings and the Bank 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 and Holdings shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinionUnderwriters a certificate of the Company or Holdings, as the case may be, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer of the Company or Holdings, as the case may be, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus, the Bank Registration Statement and this Agreement and that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property representations and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections warranties of the Registration Statement Company and any amendment or supplement thereto Holdings in this Agreement are true and correct on and as of the Closing Date with the same effect as if made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and the Company and Holdings have complied with all the agreements and satisfied all the conditions on any later date on which Option Stock are their part to be purchased, contained any untrue statement of a material fact performed or omitted satisfied at or prior to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing Date;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting stop order suspending the business or operations effectiveness of the Company which are pending Registration Statement or threatened against the Company Bank Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's or any of its officers or directors.Holdings', as the case may be, knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto not filed on or before the Execution Time) and the Bank Registration Statement, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, or the Bank 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 Prospectus (exclusive of any supplement thereto not filed on or before the Execution Time) or the Bank Registration Statement, as the case may be.
(e) The Company is listed shall have requested and caused Ernst & Young LLP to have furnished to the Underwriters letters, at the Execution Time and at the Closing Date, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriters, (substantially in the records form of the United States Patent and Trademark Office as the holder ANNEX A hereto), together with signed or reproduced copies of record of the patents listed on a schedule to such opinion (the "Patents") and letter for each of the applications listed on a schedule other Underwriters and addressed to such opinion (the Underwriters containing statements and information of the type ordinarily included in accountants' "Applications"). To the knowledge of such counsel, there are no claims of third parties comfort letters" to any ownership interest or lien underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus and the Bank Registration Statement.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof not filed on or before the Execution Time) and the Prospectus (exclusive of any supplement thereto not filed on or before the Execution Time) or the Bank Registration Statement, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole or the Bank 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 Prospectus (exclusive of any supplement thereto not filed on or before the Execution Time) or the Bank Registration Statement, as the case may be, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof not filed on or before the Execution Time) and the Prospectus (exclusive of any supplement thereto not filed on or before the Execution Time).
(g) Prior to the Closing Date, the Company and Holdings shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(h) At Closing Date, the Securities shall be rated not less than ____ by Mooxx'x Xxvestors Service, Inc. and not less than _____ by Standard & Poors Rating Services. Subsequent to the Execution Time, there shall not have been any decrease in the rating of Securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq National Market System, and satisfactory evidence of such actions shall have been provided to the Underwriters. If any of the Patents conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or Applications. Such counsel is if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not aware of any be in all material defect respects reasonably satisfactory in form in and substance to the preparation or filing Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Underwriters. To the knowledge Notice of such counselcancellation shall be given to the Company and Holdings in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Cleary, Gottlieb, Stexx & Hamxxxxx, xounsel for the Applications are being pursued by theUnderwriters, at 2000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, X.X. 00000, xn the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Huntington Preferred Capital 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationXxxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in substantially good standing under the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than Delaware, with power and authority to own its properties and conduct its business as described in the State of Delaware or Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Federal laws Prospectus, and all of the United States, to the extent they deem proper and specified in such opinion, upon the opinion issued shares 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 capital stock of the Company and public officials. References to (including the Prospectus in this paragraph (b) include any supplements thereto Securities being delivered at the Closing Date) have been duly and validly authorized and issued and are, to its knowledge, fully paid and non-assessable; and the Securities conform in all material respects to the description of the Securities contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of California, Illinois, New Jersey, New York, Ohio, Texas and Virginia;
(iv) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company is a party which, if determined adversely to the Company, would individually or in the aggregate have a Material Adverse Effect; and, to such counsel’s knowledge, no such proceedings are threatened by governmental authorities or threatened by others;
(v) This Agreement has been duly authorized, executed and delivered by the Company;
(vi) The issue and sale of the Securities being delivered at the Closing Date by the Company and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not result in any violation of the provisions of the Certificate of Incorporation or Bylaws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Act of the Securities, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters;
(viii) To such counsel’s knowledge, the Company is not in violation of its Certificate of Incorporation or Bylaws;
(ix) The statements set forth in the Prospectus under the caption “Description of Securities to be Registered”, insofar as they purport to constitute a summary of the terms of the Common Stock and under the caption “Underwriting” and “Shares Eligible for Future Sale” insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and complete in all material respects;
(x) The Company is not an “investment company”, as such term is defined in the Investment Company Act; and
(xi) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Closing Date (other than the financial statements and related schedules thereto and the financial data derived from the financial statements included therein, as to which such counsel need express no belief) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except for those referred to in the opinion in subsection (ix) of this section 6(b), they have no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Closing Date (other than the financial statements and related schedules thereto and the financial data derived from the financial statements included therein or other financial data, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing Date (other than the financial statements and related schedules thereto and the financial data derived from the financial statements included therein or other financial data, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that, as of the Closing Date, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing Date (other than the financial statements and related schedules thereto and the financial data derived from the financial statements included therein or other financial data, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and they do not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required.
(c) The Company shall have requested and caused Xxxxxx X. Xxxxxx, General Counsel for the Company, to have furnished to the Representatives her opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) The issue and sale of the Securities being delivered at the Closing Date by the Company and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument filed as an exhibit to the Registration Statement or as an exhibit to the Company’s Form 10-K/A for the year ended December 31, 2002 and which are not the subject of the opinions to be delivered pursuant to Sections 6(b) or 6(d) hereof; and
(ii) To such counsel’s knowledge, the Company is not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument filed as an exhibit to the Registration Statement or the Company’s Form 10-K/A for the year ended December 31, 2002 to which it is a party or by which it or any of its properties may be bound.
(d) The Company shall have requested and caused Willkie, Xxxx & Xxxxxxxxx, counsel to the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that the issue and sale of the Securities being delivered at the Closing Date by the Company and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, the Amended and Restated Credit and Guaranty Agreement, dated as of September 30, 2001, as amended, and the Indenture, dated as of December 1, 1999, providing for the issuance thereunder by the Company and the authentication and delivery by the Trustee, of the Company’s 13% Senior Notes due 2007, as amended by the First Supplemental Indenture, dated as of December 28, 2002.
(e) The Representatives shall have received from Xxxxxx Xxxxxx & Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property representations and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections warranties of the Registration Statement Company in this Agreement are true and any amendment or supplement thereto correct on and as of the Closing Date with the same effect as if made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on any later date on which Option Stock are its part to be purchased, contained any untrue statement of a material fact performed or omitted satisfied at or prior to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing Date;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting stop order suspending the business or operations effectiveness of the Company which are pending or threatened against Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company or any of its officers or directors.Company’s knowledge, threatened; and
(iii) The Company is listed since the date of the most recent financial statements included or incorporated by reference in the records Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect.
(g) At the Execution Time and also on the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Underwriters letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, containing statements and information of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule type customarily included in accountants’ “comfort letters” to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus;
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Final Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Securities to be delivered on the Closing Date shall have been approved for listing on the Nasdaq National Market, subject only to official notice of issuance.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto (or such other form that has been previously approved by a Representative) from each officer and director of the Company and the stockholders listed on Exhibit B addressed to the Representatives. If any of the Patents conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or Applications. Such counsel is if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not aware of any material defect be in reasonably satisfactory in form in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications Underwriters hereunder may be canceled on behalf of the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Applications are being pursued by theUnderwriters, at Eighty Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Equinix Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Underwriters shall have requested received from Xxxxx X. Xxxxx, Esq., Vice President, General Counsel and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for Corporate Secretary of the Company, to have furnished to the Representatives their opinion, a legal opinion dated the Closing Date and addressed to the RepresentativesUnderwriters, substantially in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.Exhibit A.
(c) The Representatives Underwriters shall have received from Xxxxxxx Xxxxxxx Xxxxx Xxxx & Xxxxxxxx Xxxxxxxx, special counsel to the Company, a legal opinion dated the Closing Date and addressed to the Underwriters and substantially in the form attached hereto as Exhibit B.
(d) The Underwriters shall have received from Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have furnished to the Underwriters a certificate of the Company, signed by two of its executive officers (one of whom shall be a principal financial or accounting officer of the Company), dated the Closing Date, to the effect that, to their knowledge after reasonable investigation:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in or incorporated by reference in the Final Prospectus (exclusive of any amendment or supplement thereto after the Execution Time), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Prospectus (exclusive of any amendment or supplement thereto after the Execution Time).
(f) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx Deloitte to furnish to the Underwriters letters, dated respectively as of the Execution Time and Xxxxx Xxxxxx & Xxxxxxas of the Closing Date, LLPin form and substance satisfactory to the Underwriters, intellectual property counsels confirming that it is an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder and that it has performed a review of the unaudited interim financial information of the Company for the Companynine-month period ended September 30, to have furnished to the Representatives their opinion2004, dated the Closing Date in accordance with Statement on Accounting Standards No. 100, and addressed to the Representatives to the stating in effect that:
(i) As in its opinion the audited consolidated financial statements and financial statement schedules of the Company and its subsidiaries included or incorporated in the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations thereunder;
(ii) on the basis of its limited review, in accordance with standards established under in accordance with Statement on Accounting Standards No. 100, of the unaudited interim consolidated financial information for the nine-month period ended September 30, 2004, 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 statements under comments set forth in such letter; a reading of the captions "Risk Factors-- Our intellectual property minutes of the meetings of the stockholders, the board of directors and proprietary rights may be insufficient committees thereof, committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to protect our competitive position" transactions and "--We may be subject events subsequent to intellectual property rights disputes which could divert management's December 31, 2003, nothing came to its attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them it to believe that the above-mentioned sections of that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to September 30, 2004 there were any changes, at a specified date not more than five days prior to the date of the letter, in the total long-term debt of the Company and its subsidiaries or cumulative preferred stock or common stock of the Company or decreases in the shareholders’ equity of the Company as compared with the amounts shown on the unaudited consolidated balance sheet included in the Company’s Quarterly Report on Form 10-Q for the three months ended September 30, 2004, or for the period from September 30, 2004 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in total sales or earnings (loss) before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Underwriters; and
(3) the information included under the headings “Selected Financial Data” in the Annual Report and “Ratio of Earnings to Fixed Charges” in the Final Prospectus is not in conformity with the disclosure requirements of Regulation S-K.
(iii) it has performed certain other specified procedures as a result of which it determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Final Prospectus agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this Section 6(f) include any amendment or supplement thereto made available and reviewed by such counsel, at the time date of the applicable letter.
(g) ONEOK, Inc. (“ONEOK”) shall have requested and caused KPMG LLP to furnish to the Underwriters a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriters, confirming that it is an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, and that in its opinion the audited consolidated financial statements and financial statement schedules of ONEOK and its subsidiaries included or incorporated in the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder. References to the Final Prospectus in this Section 6(g) include any amendment or supplement thereto at the date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement became effective (exclusive of any amendment thereof) and at all times subsequent the Final Prospectus (exclusive of any supplement thereto up after the Execution Time), there shall not have been (i) any change or decrease specified in the letter or letters referred to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement in paragraph (f) of a material fact this Section 6 or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material actionany change, suitor any development involving a prospective change, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by in or affecting the condition (financial or otherwise), earnings, business or operations properties of the Company which are pending and its subsidiaries, taken as a whole, whether or threatened against not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto after the Execution Time) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto after the Execution Time).
(i) Subsequent to the Execution Time, there shall not have been any (i) downgrading in the rating accorded the Company’s debt securities by a “nationally recognized securities rating organization,” as that term is defined by the Commission for purposes of its Rule 436(g)(2); and (ii) no such rating organization shall have announced publicly that it has placed, or informed the Company or the Underwriters that it intends to place, any of its officers the Company’s debt securities on what is commonly referred to as a “watchlist” for possible downgrading, in a manner or directorsto an extent indicating a materially greater likelihood of a downgrading in rating as described in clause (i) above occurring than was the case as of the date hereof.
(iiij) The Prior to the Closing Date, the Company is listed in shall have furnished to the records of the United States Patent Underwriters such further information, certificates and Trademark Office documents as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications")Underwriters may reasonably request. To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to If any of the Patents conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or Applications. Such counsel is if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not aware of any be in all material defect respects reasonably satisfactory in form in and substance to the preparation or filing Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Applications Representatives on behalf of the CompanyUnderwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters. To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered to the office of counsel for the Underwriters, at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000, on the Applications are being pursued by theClosing 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no 19 19 proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx furnished to the Representatives the opinion of Rogexx & Xxxxxx, Professional CorporationXardxx XXX, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company and its subsidiaries, (other than Waterloo Furniture Components Limited ("Waterloo"), as to which such counsel need not express an opinion), has been duly incorporated and is validly existing as a corporation in substantially good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock of the Company's subsidiaries (other than Waterloo, as to which such counsel need not express an opinion for the purposes of the first clause of this paragraph), have been duly and validly authorized and issued and are fully paid and nonassessable; and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Company's subsidiaries (including Waterloo) are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock and Class B Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will 20 20 be fully paid and nonassessable; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the New York Stock Exchange; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements in the Prospectus under the headings "Business--Environmental Matters", "Business--Legal Proceedings", "Certain Relationships and Related Transactions" and "Certain United States Tax Consequences to Non-United States Holders" fairly summarize the matters therein described;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than the financial statements and other financial information contained 21 21 therein, as to which such counsel need express no opinion) comply as to form attached hereto in all material respects with the applicable requirements of the Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or at the Execution Time the Registration Statement contains or contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as EXHIBIT A. of its date and on the Closing Date includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an "investment company" as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, 22 22 deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties; and
(x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date. The opinion of such counsel shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(c) The Company shall have furnished to the Representatives the opinion of Sims Xxxmxxx Xxxxxxx, xxecial Canadian counsel for Waterloo, dated the Closing Date and addressed to the Representatives, to the effect that:
(ii) all the outstanding shares of capital stock of Waterloo have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of Waterloo are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(d) The Representatives shall have received from Xxxxxxx Xxxxxxx Cravath, Swaine & Xxxxxxxx LLPMoorx, counsel xxunsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive 24 24 of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, Coopers & Lybrxxx X.X.P. shall have furnished to the Representatives their opinionletters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the meaning of the Act and the applicable published rules and regulations thereunder and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules of the Company included in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the statements under comments set forth in such letter; a reading of the captions "Risk Factors-- Our intellectual property minutes of the meetings of the stockholders, directors and proprietary rights may be insufficient audit and management development and compensation committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to protect our competitive position" transactions and "--We may be subject events subsequent to intellectual property rights disputes which could divert management's December 31, 1997, nothing came to their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that that:
(1) subsidiaries or decreases in the above-mentioned sections stockholder's equity of the Company as compared with the amounts shown on the December 31, 1997 consolidated balance sheet included in the Registration Statement and the Prospectus, or for the period from January 1, 1998 to such specified date there were any amendment decreases, as compared with the corresponding period in the preceding year in net sales or supplement thereto made available income before income taxes or in total or per share amounts of net income of the Company and reviewed its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by such counsel, at an explanation by the time Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(2) the information included in the Registration Statement became effective and at all times subsequent thereto up Prospectus in response to and on the Closing Date and on any later date on which Option Stock are to be purchasedRegulation S-K, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
Item 301 (ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents"Selected Financial Data) and each of the applications listed on a schedule to such opinion Item 402 (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel Executive Compensation) is not aware in conformity with the applicable disclosure requirements of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theRegulation S-K;
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx furnished to the Representatives the opinion of Akin, Gump, Strauss, Xxxxx & XxxxxxXxxx, Professional CorporationL.L.P., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed Date, to the Representativeseffect that:
(i) each of the Company, ________________ and ______________ [names of subsidiaries] has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus.
(ii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus or in a schedule attached to such opinion, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set forth in the Final Prospectus; the Securities conform in all material aspects to the description thereof contained in the Final Prospectus; [the Securities are duly authorized for listing, subject to official notice of issuance, on _____________ Stock Exchange;]
(iv) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Final Prospectus which is not adequately disclosed in the Final Prospectus, to the knowledge of such counsel, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto which is not described or filed as required; and to the knowledge of such counsel the statements included or incorporated in the Final Prospectus describing any legal proceedings or material contacts or agreements relating to the Company and the statements in the Final Prospectus under the headings "Recent Developments" [, "Tax Matters" and "Regulatory Matters and Legal Proceedings"] fairly summarize such matters;
(vi) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(x) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its subsidiaries, or (ii) to such counsel's knowledge, the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument and to which the Company or its subsidiaries is a party or bound or to which its property is subject or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties, except for such as would not have a material adverse effect on the Company and its subsidiaries taken as a whole; and
(xi) except as set forth on Schedule III attached hereto, which rights have been waived or satisfied, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In addition, such counsel shall also state that they have no reason to believe that on the Effective Date or at the Execution Time the Registration Statement contains or contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus as of its date and on the Closing Date includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in substantially the form attached hereto light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial information contained therein, as EXHIBIT A. to which such counsel need express no opinion with respect to such statement, such counsel may state that their belief is based upon the procedures set forth therein, but is without independent verification). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas, the State of Delaware or the Federal laws of the United States, to the extent they deem deemed proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe believed to be reliable and who are reasonably satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates or other written statements of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx Cravath, Swaine & Xxxxxxxx LLPXxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property representations and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections warranties of the Registration Statement Company in this Agreement are true and any amendment or supplement thereto correct in all material respects on and as of the Closing Date with the same effect as if made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on any later date on which Option Stock are its part to be purchased, contained any untrue statement of a material fact performed or omitted satisfied at or prior to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing Date;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting stop order suspending the business or operations effectiveness of the Company which are pending or threatened against Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company or any of its officers or directors.Company's knowledge, threatened; and
(iii) The Company is listed since the date of the most recent financial statements included in the records Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the United States Patent Company and Trademark Office its subsidiaries, taken as a whole, whether or not arising from transactions in the holder ordinary course of record business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, Ernst & Young LLP, KPMG Peat Marwick LLP [and Miller, Kaplan, Arase & Co.] shall have furnished to the Representatives letters dated as of the patents listed on a schedule Execution Time and the Closing Date, in form and substance satisfactory to such opinion the Representatives.
(f) Subsequent to the "Patents"Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and each the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting materially adversely the condition (financial or otherwise), earnings, business or properties of the applications listed on Company and its subsidiaries, taken as a schedule whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in the sole judgment of the Representatives, so material and adverse as to such opinion make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the "Applications"Final Prospectus (exclusive of any supplement thereto). To .
(g) Subsequent to the knowledge of such counselExecution Time, there are no claims shall not have been any decrease in the rating of third parties to any ownership interest or lien with respect to any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purpose of Rule 436(g) under the Act) or Applications. Such counsel is not aware any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Underwriters shall also have received on the Closing Date the opinion of local counsel for the Company experienced in such matters, in certain of the major jurisdictions in which the Company conducts business, dated the Closing Date, addressed to the Underwriters substantially to the effect that certain statements included in the Final Prospectus, insofar as such statements constitute a summary of regulatory matters in the applicable jurisdiction relating to the outdoor advertising industry, fairly describes the regulatory matters relating to the Company's business as that business is conducted in the applicable metropolitan area.
(i) The Underwriters shall have received on the Closing Date the opinion of Xxxx & Marks, special FCC counsel to the Company, dated the Closing Date, addressed to the Underwriters as is reasonably acceptable to the Underwriters.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material defect 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 in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of Cravath, Swaine & Xxxxx, counsel for the Applications are being pursued by theUnderwriters, at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any subsequent 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m., New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m., New York City time time, on such date or (ii) 9:30 AM 12:00 Noon, New York City time, on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m., New York City time time, on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to the applicable paragraph of Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives the opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed Date, to the Representativeseffect that:
(i) each of the Company and each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to so qualify or be in good standing, singly or in the aggregate would not have a material Adverse Effect;
(ii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable and all outstanding shares of capital stock of the Subsidiaries (other than ___ of [MTC Japan]) are owned by the Company free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances, except as described in the Registration Statement;
(iii) the Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms to the description thereof contained in the Prospectus; the outstanding shares of Common Stock, par value $.001 per share, of the Company have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities being sold hereunder have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities are duly authorized for quotation, subject to official notice of issuance, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; and the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements in the Prospectus under the captions "Prospectus Summary--Reorganization," "Risk Factors--Government Regulation," "Risk Factors--Impact of Shares Eligible for Future Sale," "Business-Regulation," "Business--Legal Proceedings," "Business--Reorganization," "Management--Stock Option Plans and Arrangements," "Certain Transactions," "Description of Capital Stock, "Shares Eligible for Future Sale," and "Certain U.S. Tax Considerations for Non-U.S. Holders" fairly summarize, in substantially all material respects, the matters therein described, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein;
(v) the Registration Statement has become effective under the Securities Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein as to which such counsel need render no opinion) comply as to form attached hereto in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder; and such counsel has no reason to believe that at the Effective Date the Registration Statement (other than the financial statements and other financial and statistical information contained therein as EXHIBIT A. to which such counsel need render no opinion) includes any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date or the Closing Date (other than the financial statements and other financial and statistical information contained therein as to which such counsel need render no opinion), includes 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 circumstances under which they were made, not misleading;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction or the NASD Corporate Financing Rule in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (if any, and specified in such opinion) as have been obtained;
(viii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions contemplated herein, nor the fulfillment of the terms hereof will conflict with result in a breach or violation of, or constitute a default under, any law or the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any Subsidiary is a party or bound or any judgment, order or decree known to such counsel to be applicable to the Company or any Subsidiary of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any Subsidiary; and
(ix) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement, which rights have not been satisfied or waived with respect to the offering made by the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware California or the Federal federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date. With respect to paragraph (b)(v) of this Section 6, counsel may state that its belief is based upon its participation in the preparation of the Registration Statement and Prospectus and any amendments and supplements thereto and review and discussion of the contents thereof, but is without independent check or verification.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx Xxxxxx & Xxxxxxxx LLPXxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement supplements 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company, signed by the Chief Executive Officer, President and Chief Financial Officer of the Company, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus, and this Agreement, and that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property representations and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections warranties of the Registration Statement Company in this Agreement are true and any amendment or supplement thereto correct on and as of the Closing Date with the same effect as if made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on any later date on which Option Stock are its part to be purchased, contained any untrue statement of a material fact performed or omitted satisfied hereunder at or prior to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing Date;
(ii) Such counsel knows no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplements thereto), there has been no material actionadverse change, suitor development involving a prospective change, claim in the condition (financial or proceeding relating to patentsother), patent rights business, prospects, properties, net worth or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or results of operations of the Company which are pending and its subsidiaries, taken as a whole, whether or threatened against not arising from transactions in the Company ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any of its officers or directorssupplements thereto).
(iiie) The Company is listed At the Execution Time and at the Closing Date, KPMG Peat Marwick LLP shall have furnished to the Representatives a signed letter, dated respectively as of the Execution Time and as of the Closing Date, each in the records respective form contemplated for "comfort letters addressed to underwriters" by Statement of Auditing Standards No. 72 ("SAS 72"), and in form and substance previously provided to for review and agreed to as satisfactory to the Representatives and to counsel for the Underwriters. Each such letter shall specify therein, inter alia, the amounts described as being set forth therein in paragraph (f)(i) of this Section 6 as of the United States Patent dates contemplated by SAS 72.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and Trademark Office as the holder Prospectus (exclusive of record any supplement thereto), there shall not have been (i) any increases in the Company's (including its consolidated subsidiaries') long-term debt (including current maturities), or changes in the Company's (including its consolidated subsidiaries') capital stock or stockholders' equity, or decreases in the Company's (including its consolidated subsidiaries') working capital, total net sales, net income (or increases in net loss) or per share amounts, in each case from the amounts specified in the letter delivered at the Execution Time and referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, prospects, properties, net worth or results of operations of the patents listed on Company and its subsidiaries, taken as a schedule whole, the effect of which, in any case referred to such opinion in clauses (i) or (ii) above, is, in the "Patents"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) and the Prospectus (exclusive of any supplement thereto).
(g) On or prior to the Execution Time, the NASD shall have approved the Underwriters' participation in the distribution of the Securities and the Nasdaq National Market shall have approved the Securities for listing thereon.
(h) At the Execution Time, the Company shall have furnished to the Representatives each of the applications listed on a schedule signed Lock-Up Letters.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such opinion (further information, certificates and documents as the "Applications")Representatives or counsel for the Underwriters may reasonably request. To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to If any of the Patents conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or Applications. Such counsel is if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not aware of any be in all material defect respects reasonably satisfactory in form in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counsel, cancellation shall be given to the Applications are being pursued Company in writing or by thetelephone or telegraph confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Netsource Communications 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, Bonds shall be subject to (i) the accuracy of the representations and warranties (A) on the part of the Company Issuer and Reliant contained herein in this Underwriting Agreement, (B) on the part of Reliant contained in Article III of the Sale Agreement, and (C) on the part of the Servicer contained in Section 5.01 of the Servicing Agreement, all as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereof, to Date; (ii) the accuracy of the statements of the Company Issuer and Reliant made in any certificates pursuant to the provisions hereof, to ; (iii) the performance by the Company Issuer and Reliant of its their obligations hereunder hereunder; and to (iv) the following additional conditionsconditions precedent:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date date, or (ii) 9:30 AM 12:00 Noon New York City time on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such date; if filing of the Final Prospectus, or and any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Representatives shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinionreceived an opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, in of Xxxxx X. Xxxxx, Deputy General Counsel of Reliant, substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon covering 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 officialspoints listed in Exhibit A hereto. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.---------
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such an opinion or opinions, dated the Closing Date Date, of Xxxxx Xxxxx L.L.P., counsel to the Issuer and addressed Reliant, substantially covering the opinion points listed in Exhibit B hereto. --------- 11
(d) The Representatives shall have received an opinion or opinions, dated the Closing Date, of Xxxxxxx, Xxxxxx and Finger, P.A., special Delaware counsel to the Issuer, substantially covering the opinion points listed in Exhibit C --------- hereto.
(e) The Representatives shall have received an opinion, dated the Closing Date, of Xxxxxx & Xxxxxx LLP, special New York counsel to the Trustee and the Securities Intermediary, in form and substance reasonably satisfactory to the Representatives, to the effect that:
(i) Bankers Trust Company is a banking corporation validly existing under the laws of the State of New York;
(ii) Each of the Trustee and the Securities Intermediary has full power and authority to execute, deliver and perform its respective obligations under the Indenture, the First Supplemental Indenture and the Intercreditor Agreement (the "Trustee Agreements"), as the case may be, and has taken all necessary action to authorize the execution, delivery and performance by it of each of the Trustee Agreements to which it is a party;
(iii) each of the Trustee Agreements has been duly executed and delivered by the Trustee or the Securities Intermediary, as the case may be, and constitutes a legal, valid and binding obligation of the Trustee or the Securities Intermediary, as the case may be, enforceable under New York law against the Trustee or the Securities Intermediary, as the case may be, in accordance with its respective terms, except that certain of such obligations may be enforceable solely against the Trust Estate and except that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iv) the Trustee has duly authenticated the Bonds issued on the Closing Date in accordance with the terms of the Indenture and the First Supplemental Indenture;
(v) to the best of such counsel's knowledge, no approval, authorization or other action by or filing with any governmental authority of the United States of America or of the State of New York having jurisdiction over the banking or trust powers of the Trustee or the Securities Intermediary is required in connection with the execution and delivery by the Trustee or the Securities Intermediary of the Trustee Agreements; and
(vi) the execution and delivery of the Trustee Agreements and the performance by the Trustee or the Securities Intermediary, as the case may be, of the respective terms of the Trustee Agreements do not conflict with or result in a violation of the Articles of Incorporation or By-laws of the Trustee or the Securities Intermediary or the applicable federal laws of the United States of America or of the State of New York having jurisdiction over the banking or trust powers of the Trustee or the Securities Intermediary.
(f) The Representatives shall have received an opinion, dated the Closing Date, from each of Xxxxxx & Xxxxxx L.L.P. and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Underwriters, with respect to the issuance and sale of the SecuritiesBonds, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Issuer and Reliant shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(dg) The Company Representatives shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxxreceived a certificate of the Issuer, LLP, intellectual property counsels for signed by a duly authorized manager of the Company, to have furnished to the Representatives their opinionIssuer, dated the Closing Date and addressed to the Representatives Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Underwriting Agreement and that:
(i) As the representations and warranties of the Issuer in this Underwriting Agreement and made pursuant to the statements under the captions "Risk Factors-- Our intellectual property Indenture are true and proprietary rights may be insufficient to protect our competitive position" correct in all material respects on and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections as of the Registration Statement and any amendment or supplement thereto Closing Date with the same effect as if made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date Date, and the Issuer has complied with all the agreements and satisfied all the conditions on any later date on which Option Stock are its part to be purchased, contained any untrue statement of a material fact performed or omitted satisfied at or prior to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing Date;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting stop order suspending the business or operations effectiveness of the Company which Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or or, to the Issuer's knowledge, are threatened against by the Company or SEC, and any request on the part of its officers or directors.the SEC for additional information has been complied with; and
(iii) The Company since the dates as of which information is listed given in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in (A) the condition (financial or other), prospects, business or properties of the Issuer, whether or not arising from transactions contemplated by the Final Prospectus or in the ordinary course of business, or (B) the Transition Property or any right related thereto under the Texas Electric Choice Plan or the Financing Order, except as set forth in the Final Prospectus (exclusive of any supplement thereto).
(h) The Representatives shall have received a certificate of Reliant, signed by an executive officer (including, without limitation, the Treasurer) of Reliant, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Underwriting Agreement and that:
(i) the representations and warranties of Reliant in this Underwriting Agreement, the Sale Agreement, the Servicing Agreement and the Administration Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and Reliant has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to Reliant's knowledge, are threatened by the SEC, and any request on the part of the SEC for additional information has been complied with; and
(iii) since the dates as of which information is given in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change (A) in or affecting the business, properties or financial condition of Reliant, whether or not arising from transactions contemplated by the Final Prospectus or in the ordinary course of business, or (B) in the Transition Property or any right related thereto under the Texas Electric Choice Plan or the Financing Order, except as set forth in the Final Prospectus (exclusive of any supplement thereto).
(i) At the Closing Date, Deloitte & Touche LLP shall have furnished to the Representatives (i) a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Registration Statement and the Final Prospectus agrees with the accounting records of the United States Patent Issuer and Trademark Office Reliant, excluding any questions of legal interpretation, and (ii) the opinion or certificate, dated as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselClosing Date, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in and substance satisfactory to the preparation or filing Representatives, satisfying the requirements of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theSection 2.10(7)
Appears in 1 contract
Samples: Underwriting Agreement (Reliant Energy Transition Bond Co LLC)
Conditions to the Obligations of the Underwriters. The obligations of ------------------------------------------------- the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The the Chief Legal Officer of the Company shall have requested and caused Xxxxxx Xxxxx & Xxxxxxx Xxxxxxxx & XxxxxxLLP, Professional Corporation, special counsel for to the Company, shall have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives, in substantially the forms attached hereto as Annexes I and II, respectively.
(c) Xxxxxxx Berlin Shereff Xxxxxxxx, LLP, special counsel to the Company, shall have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateAnnex III.
(cd) The Representatives Underwriters shall have received from Xxxxxxx Xxxxxxx Xxxxx, Xxxxx & Xxxxxxxx LLPXxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration StatementIndenture, the Final Prospectus (together with any amendment or supplement thereof or 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.
(de) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any amendments or supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date;
(ii) the Registration Statement has become effective under the Act; any required filing of the Final Prospectus and any supplement thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth, incorporated by reference or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused both Xxxxxx Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives Representatives, in substantially the form attached hereto as Annex IV.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereof or thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto) the effect that: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) and the Final Prospectus (exclusive of any supplement thereto).
(h) At the Closing Date, the Securities shall be rated not lower than B by Standard & Poor's Corporation and B-3 by Xxxxx'x Investor Service, Inc. Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) As Prior to the statements Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(j) The Company shall have furnished to the Representatives a certificate from The Chase Manhattan Bank, in its capacity as agent for the lenders under the captions Senior Secured Credit Facilities, certifying that the Required Lenders (as defined therein) have executed an amendment thereto in the form attached hereto as Annex V, with a copy of the executed amendment attached thereto.
(k) The Company shall have furnished to the Representatives a letter or letters executed by Forstmann Little & Co. Equity Partnership V, L.P., Forstmann Little & Co. Subordinated Debt and Equity Management Buyout Partnership VI, L.P., and Forstmann Little & Co. Subordinated Debt and Equity Management Buyout Partnership VII, L.P. (individually, a "Risk Factors-- Our intellectual property Preferred Stock Purchaser" and, collectively, the "Preferred Stock Purchasers"), certifying that all of the conditions set forth in paragraph (c) of Schedule 4.14 to the Stock Purchase Agreement dated as of August 30, 1999 (as amended) by and proprietary rights between the Preferred Stock Purchasers and the Company, relating to the incurrence of Indebtedness (as defined therein) by the Company or by any of its Subsidiaries, have been met or waived by each of the Preferred Stock Purchasers with respect to (i) the Indebtedness represented by the Securities, (ii) Indebtedness under the Senior Secured Credit Facilities (as defined in the Final Prospectus), and (iii) Indebtedness incurred by the Company pursuant to the Indenture dated as of December 5, 2000, between the Company and United States Trust Company of New York with respect to the 12% Senior Notes Due 2008 and pursuant to the Indenture dated as of December 5, 2000, between the Company and United States Trust Company of New York with respect to the 11 1/2% Senior Notes Due 2009. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be insufficient to protect our competitive position" and "--We may canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come given to the attention Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of such Xxxxx & Xxxxxxx, special counsel which caused them to believe that for the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counselCompany, at the time the Registration Statement became effective and at all times subsequent thereto up to and Columbia Square, 000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000, on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsDate.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of ------------------------------------------------- the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused furnished to the Representatives the opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationX. XxXxx, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, Date,substantially in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely Exhibit A.
(Ac) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, The Company shall have furnished to the extent they deem proper and specified in such opinion, upon Representative the opinion of other Jaffe, Raitt, Heuer & Xxxxx, special 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 properCompany, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at dated the Closing Date., substantially in the form attached hereto as Exhibit B.
(cd) The Representatives shall have received from Xxxxxxx Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, the Remarketing Agreement, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business, properties or prospects of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(f) At the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Representatives their opiniona letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that:
(i) As to in their opinion the audited consolidated financial statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of financial statement schedule incorporated by reference in the Registration Statement and any amendment or supplement thereto made available the Final Prospectus and reviewed reported on by such counsel, at them comply in form in all material respects with the time applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations thereunder with respect to the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingStatement;
(ii) Such counsel knows on the basis of no procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) reading the minutes of meetings of the stockholders, the Board of Directors and the audit and executive committees of the Board of Directors of the Company and its consolidated subsidiaries since December 31, 1997 as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) performing the procedures specified by the American Institute of Certified Public Accounts for a review of interim financial information as described in SAS No. 71, Interim Financial Information, on the unaudited condensed interim financial statements of the Company and its consolidated subsidiaries incorporated by reference in the Registration Statement and Final Prospectus and reading the unaudited interim financial data for the period from the date of the latest balance sheet incorporated by reference in the Registration Statement and Final Prospectus to the date of the latest available interim financial data; and
(c) making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below; nothing has come to their attention as a result of the foregoing procedures that caused them to believe that:
(1) any unaudited condensed interim financial statements included or incorporated in the Registration Statement and the Final Prospectus do not comply in form in all material actionrespects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited condensed interim financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the date of the most recent unaudited condensed interim financial statements (other than any capsule information), suitaudited or unaudited, claim included or proceeding relating incorporated in the Registration Statement and the Final Prospectus, there were any changes, at a specified date not more than three business days prior to patentsthe date of the letter, patent rights in the long-term debt of the Company and its subsidiaries or licensescapital stock of the Company or decreases in the shareowners' equity of the Company or decreases in working capital of the Company and its subsidiaries consolidated as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Final Prospectus, trademarks or trademark rightsfor the period from the date of the most recent unaudited condensed interim financial statements included or incorporated in the Registration Statement and the Final Prospectus to such specified date not more than three business days prior to the date of the letter there were any decreases, copyrightsas compared with the corresponding period in the preceding year, collaborative researchin revenues, licenses operating income or royalty arrangements in total or agreements per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or trade secretsdecreases which the Registration Statement discloses have occurred or may occur, know-how or proprietary techniquesas 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; or
(3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Final Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including processes the information included or incorporated in Items 1, 2, 6, 7, 7A, 8, 11 and substances14 of the Company's Annual Report on Form 10-K, owned by incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly Reports on Form 10-Q, incorporated in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (f) include any supplement thereto at the date of the letter. In addition, except as provided in Schedule I hereto, at the Execution Time, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter or letters, dated as of the Execution Time, in form and substance satisfactory to the Representatives, to the effect set forth above.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any 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 5 or (ii) any change, or any development involving a prospective change, in or affecting the business or operations properties of the Company which are pending and its subsidiaries the effect of which, in any case referred to in clause (i) or threatened against (ii) above, is, in the Company judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of its officers or directorsany supplement thereto).
(iiih) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company's debt securities by any "nationally recognized statistical rating organization"(as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Company is listed in shall have delivered to X.X. Xxxxxx Securities Inc. the records Remarketing Agreement, duly executed by an authorized officer of the United States Patent Company.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and Trademark Office documents as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications")Representatives may reasonably request. To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to If any of the Patents conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or Applications. Such counsel is if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not aware of any be in all material defect respects reasonably satisfactory in form in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counsel, cancellation shall be given to the Applications are being pursued Company in writing or by thetelephone or telecopy confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Offerors contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company Offerors made in any certificates pursuant to the provisions hereof, to the performance by the Company Offerors of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinionthe opinion of Raymxxx X. Xxxxxx, Xxnior Vice President - Legal of the Company, or of other counsel for the Company satisfactory to the Representatives, dated the Closing Date and addressed to the RepresentativesDate, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge Company, SunTrust Banks of such counselFlorida, there are no claims Inc., SunTrust Banks of third parties to any ownership interest or lien with respect to any Georgia, Inc., SunTrust Banks of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counselTennessee, the Applications are being pursued by theInc., SunTrust Bank, Central Florida and SunTrust Bank, Atlan-
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, furnished to the Representatives the opinion of counsel for the Company, to dated the Closing Date, substantially in the form of Exhibit A.
(c) The Company shall have furnished to the Representatives their opinionthe opinion of Xxxxxxx Berlin Shereff Xxxxxxxx, LLP, special counsel to the Company on regulatory matters, dated the Closing Date and addressed to the RepresentativesDate, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements in or incorporated by reference in the Final Prospectus under the captions headings "Risk Factors-- Factors - Competition in the Communications Services Industry Could Cause Us to Lose Customers and Revenue and Could Make it More Difficult for Us to Enter New Markets," "Risk Factors - We May Not Succeed in Developing or Making a Profit from Wireless Services," "Risk Factors - Competition in the Wireless Telecommunications Industry Could Make it Harder for Us to Successfully Offer Wireless Services," "Risk Factors - Government Regulation May Increase Our intellectual property Cost of Providing Services, Slow Our Expansion into New Markets and proprietary rights may be insufficient Subject Our Services to protect our competitive positionAdditional Competitive Pressures," "Business - Market Potential," "Business - Expansion of Services Using Our Own Communications Network Facilities," "Business - Proposed Wireless Services," "Business - Competition" and "--We may be subject to intellectual property rights disputes which could divert management's attention Business - Regulation" fairly and could be costly" accurately summarize the laws, case law, rules, regulations and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections orders of the Registration Statement Federal Communications Commission ("FCC") and the comparable state regulatory agencies or bodies with direct regulatory jurisdiction over telecommunications matters in the states in which the Company and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion Subsidiaries provide intrastate services (the "PatentsState Regulatory Agencies") and each of the applications listed on a schedule to except for such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien changes with respect to any of such laws, case law, rules, regulations and orders which could not have a material adverse effect on the Patents or Applications. Such counsel is not aware of any material defect in form in Company and, to the preparation or filing of the Applications on behalf of the Company. To the best knowledge of such counsel, the Applications are being pursued statements in or incorporated by thereference in the Final Prospectus under the headings "Risk Factors - Our Dependence on Regional Xxxx Operating Companies to Provide Most of Our Communications Services Could Make it Harder for Us to Offer Our Services at a Profit," "Risk Factors - Actions by US WEST May Make it More Difficult for Us to Offer Our Communications Services" and "Legal Proceedings" fairly and accurately summarize the legal proceedings set forth therein with respect to US WEST Communications, Inc. except for such changes with respect to such legal proceedings and action which could not have a material adverse effect on the Company;
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM New York City time on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationLLP, counsel for the Company, to have furnished to the Representatives their its opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in substantially Annex B hereto. The Company shall have caused Xxxxxx X. Xxxxxxxx, Corporate Vice President-Corporate Development, General Counsel and Secretary of the form attached hereto as EXHIBIT A. In rendering such Company to have furnished to the Representatives his opinion, such counsel may rely (A) as dated the Closing Date and addressed to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United StatesRepresentatives, to the extent they deem proper and specified effect set forth in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateAnnex C hereto.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date pursuant to Section 3 hereto substantially in the form of Exhibit B hereto.
(e) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, to the effect set forth in Annex D hereto.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been included for quotation on the Nasdaq National Market and satisfactory evidence of such action shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter addressed to the Representatives substantially in the form of Exhibit A hereto from each of the executive officers and directors of the Company and from an authorized officer of each of Advanced Micro Devices, Inc. and Fujitsu Limited.
(k) The closing of the purchase of the senior unsecured notes to be issued and sold by Spansion LLC pursuant to the effect that:
(i) As Purchase Agreement dated the date hereof among Spansion LLC, the Company, as guarantor, and the initial purchasers party thereto shall occur concurrently with the closing described herein. If any of the 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 statements under Representatives and counsel for the captions "Risk Factors-- Our intellectual property Underwriters, this Agreement and proprietary rights all obligations of the Underwriters hereunder may be insufficient to protect our competitive position" and "--We may cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come given to the attention Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of such Xxxxx Xxxx & Xxxxxxxx, counsel which caused them to believe that for the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counselUnderwriters, at the time the Registration Statement became effective and at all times subsequent thereto up to and 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsDate.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of ------------------------------------------------- the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, furnished to the Representatives the opinion of counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, substantially in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.Exhibit A.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 Purchasers the opinion of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & XxxxxxXxxxxxx Berlin Shereff Xxxxxxxx, LLP, intellectual property counsels for the Company, to have furnished special counsel to the Representatives their opinionCompany on regulatory matters, dated the Closing Date and addressed to the Representatives Date, to the effect that:
(i) As to the statements in or incorporated by reference in the Prospectus under the captions headings "Risk Factors-- Factors - Competition in the Communications Services Industry Could Cause Us to Lose Customers and Revenue and Could Make it More Difficult for Us to Enter New Markets," "Risk Factors - We May Not Succeed in Developing or Making a Profit from Wireless Services," "Risk Factors - Competition in the Wireless Telecommunications Industry Could Make it Harder for Us to Successfully Offer Wireless Services," "Risk Factors - Government Regulation May Increase Our intellectual property Cost of Providing Services, Slow Our Expansion into New Markets and proprietary rights may be insufficient Subject Our Services to protect our competitive positionAdditional Competitive Pressures," "Business - Market Potential," "Business - Expansion of Services Using Our Own Communications Network Facilities," "Business - Proposed Wireless Services," "Business - Competition" and "--We may be subject to intellectual property rights disputes which could divert management's attention Business - Regulation" fairly and could be costly" accurately summarize the laws, case law, rules, regulations and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections orders of the Registration Statement Federal Communications Commission ("FCC") and the comparable state regulatory agencies or bodies with direct regulatory jurisdiction over telecommunications matters in the states in which the Company and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion Subsidiaries provide intrastate services (the "PatentsState Regulatory Agencies") and each of the applications listed on a schedule to except for such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien changes with respect to any of such laws, case law, rules, regulations and orders which could not have a material adverse effect on the Patents or Applications. Such counsel is not aware of any material defect in form in Company and, to the preparation or filing of the Applications on behalf of the Company. To the best knowledge of such counsel, the Applications are being pursued statements in or incorporated by thereference in the Prospectus under the headings "Risk Factors - Our Dependence on Regional Xxxx Operating Companies to Provide Most of Our Communications Services Could Make it Harder for Us to Offer Our Services at a Profit," "Risk Factors - Actions by US WEST May Make it More Difficult for Us to Offer Our Communications Services" and "Business - Legal Proceedings" fairly and accurately summarize the legal proceedings set forth therein with respect to US WEST Communications, Inc. except for such changes with respect to such legal proceedings and action which could not have a material adverse effect on the Company;
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date Settlement Date pursuant to Section 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b1) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationProcter LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth in substantially Exhibit B and (2) The Company shall have requested and caused Xxxxxx X. Xxxxxx, Xx., counsel for the form attached hereto as EXHIBIT A. In rendering such Company, to have furnished to the Representatives his opinion, such counsel may rely (A) as dated the Closing Date and addressed to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United StatesRepresentatives, to the extent they deem proper and specified effect set forth in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.Exhibit C.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx King & Xxxxxxxx Spalding LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have reviewed the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) As the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the statements under Closing Date;
(ii) no stop order suspending the captions "Risk Factors-- Our intellectual property effectiveness of the Registration Statement has been issued and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as for matters set forth in or contemplated in the Final Prospectus (exclusive of any supplements thereto).
(e) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three- and six-month period ended June 30, 2005, and as at June 30, 2005 in accordance with Statement on Auditing Standards No. 100, and stating in effect, except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its Subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the three- and six-month period ended June 30, 2005, and as at June 30, 2005, incorporated by reference in the Registration Statement and the Final Prospectus; 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 compensation committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its Subsidiaries as to transactions and events subsequent to December 31, 2004, nothing came to their attention of such counsel which caused them to believe that the above-mentioned sections of that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and any amendment the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or supplement thereto made available incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and reviewed said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by such counsel, at the time reference in the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingFinal Prospectus;
(ii2) Such counsel knows with respect to the period subsequent to June 30, 2005, there were any changes, at a specified date not more than five days prior to the date of no material actionthe letter, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, knowin the long-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations term debt of the Company which are pending and its Subsidiaries or threatened against capital stock of the Company or decreases in the stockholders’ equity of the Company or decreases in total assets, cash or cash equivalents or working capital as compared with the amounts shown on the June 30, 2005 consolidated balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from July 1, 2005, to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in product and service revenue or research and development contract revenue, or increases, as compared with the corresponding period in the preceding year, in net loss or loss per share of the Company and its officers Subsidiaries, except in all instances for changes or directors.decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included or incorporated by reference in the Registration Statement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent Company and Trademark Office its Subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions “Selected Historical Consolidated Financial Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in the Final Prospectus, the information included or incorporated by reference in Items 1, 2, 3, 5, 6, 7, 11 and 12 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Final Prospectus, and the information included in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included or incorporated by reference in the Company’s Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its Subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company 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 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) and the Final Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the holder of record of Representatives may reasonably request.
(h) Subsequent to the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselExecution Time, there are no claims shall not have been any decrease in the rating of third parties to any ownership interest or lien with respect to any of the Patents Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or Applications. Such counsel is not aware any notice given of any material defect 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 Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in reasonably satisfactory in form in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of King & Spalding LLP, counsel for the Applications are being pursued by theUnderwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Fund and the Advisers 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 Fund and the Advisers made in any certificates pursuant to the provisions hereof, to the performance by the Company Fund or the Advisers of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the total public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the total public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b)497, the Prospectus, and any such supplement, will be 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 order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or threatened, and any request of the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with in all material respects.
(b) The Company Fund shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Mxxxxx, Xxxxx & Xxxxxx, Professional CorporationBxxxxxx LLP, counsel for the CompanyFund, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) The Fund has been duly formed and is validly existing in substantially good standing as a statutory trust under the laws of the State of Delaware, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Prospectus and the Prospectus, and is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification except to the extent that the failure to be so qualified would not have a material adverse effect on the Fund; and the Fund has no subsidiaries;
(ii) The Fund’s authorized equity capitalization is as set forth in the Preliminary Prospectus and the Prospectus; the capital stock of the Fund conforms in all material respects to the description thereof contained in the Registration Statement, the Preliminary Prospectus and the Prospectus; all outstanding Common Shares have been duly and validly authorized and issued and are fully paid and nonassessable (except as set forth in Section 3.8 of the Declaration of Trust); the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable (except as set forth in Section 3.8 of the Declaration of Trust); the certificates for the Securities are in valid and sufficient form; the holders of the outstanding Common Shares are not entitled to preemptive or other rights to subscribe for the Securities under any of the Fund Agreements, the Declaration of Trust, the By-Laws or the Delaware Statutory Trust Act; and except as set forth in the Preliminary Prospectus and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Fund are outstanding and no holder of securities of the Fund has rights to the registration of such securities under the Registration Statement;
(iii) To the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Fund or its property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Preliminary Prospectus and the Prospectus, and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement, the Preliminary Prospectus or the Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required by the Act, the 1940 Act or the Rules and Regulations;
(iv) The statements included in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Matters,” “Description of Preferred Shares,” “Description of Common Shares” and “Certain Provisions in the Agreement and Declaration of Trust” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(v) The Registration Statement has become effective under the Act; any required filing of the Preliminary Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 497 have been made in the manner and within the time period required by Rule 497; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened by the Commission;
(vi) The Registration Statement, the Preliminary Prospectus and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form attached hereto in all material respects with the applicable requirements of the Act, the 1940 Act and the Rules and Regulations; and, such counsel has no reason to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or each of the Preliminary Prospectus, as EXHIBIT A. of the time of the pricing of the Securities on [ ], 2007] and the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vii) The execution and delivery of and the performance by the Fund of its obligations under this Agreement and the Fund Agreements have been duly and validly authorized by the Fund and this Agreement and the Fund Agreements have been duly executed and delivered by the Fund and constitute the valid and legally binding agreements of the Fund, enforceable against the Fund in accordance with their terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Fund’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles;
(viii) The Fund is duly registered with the Commission under the 1940 Act as a closed-end, non-diversified management investment company and all action has been taken by the Fund as required by the Act, the 1940 Act and the Rules and Regulations in connection with the issuance and consummation of the sale of the Securities as contemplated by this Agreement; the Fund Agreements comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations;
(ix) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained under the Act and the 1940 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Preliminary Prospectus and the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(x) Neither the issuance and sale of the Securities by the Fund pursuant to this Agreement, the execution and delivery of this Agreement or any of the Fund Agreements by the Fund, nor the consummation by the Fund of the transactions contemplated by this Agreement and the Fund Agreements (1) conflicts or will conflict with or constitutes or will constitute a breach of the Declaration of Trust or By-laws, (2) conflicts or will conflict with or will constitute a breach of, or a default under, any agreement, indenture, lease, or other instrument to which the Fund is party or by which it or any of its properties may be bound, (3) violates or will violate any statute, law, rule, regulation, judgment, injunction, order or decree applicable to the Fund or any of its properties or (4) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Fund is subject; In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal federal laws of the United States, to the extent they deem proper and to the extent 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 Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company Fund and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date.
(c) The Representatives You shall have received from Xxxxxxx Xxxxxxx on the Closing Date an opinion of Mxxxxx, Xxxxx & Xxxxxxxx Bxxxxxx LLP, counsel for the Underwriters, such opinion or opinionsAdviser, dated the Closing Date and addressed to you, as Representatives of the Representativesseveral Underwriters, to the effect that:
(i) The Adviser has been duly formed and is validly existing in good standing as a limited partnership under the laws of the State of Delaware, with respect full limited partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Preliminary Prospectus and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification.
(ii) The Adviser is duly registered under the Advisers Act as an investment adviser and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement as contemplated by the Preliminary Prospectus and the Prospectus;
(iii) The Adviser has full power and authority to enter into this Agreement and the Management Agreement;
(iv) This Agreement has been duly authorized, executed and delivered by the Adviser;
(v) The Management Agreement has been duly authorized, executed and delivered by the Adviser and is a valid and legally binding agreement of the Adviser, enforceable against the Adviser in accordance with its terms except as rights to indemnity and contribution may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Adviser’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles;
(vi) This Agreement and the Management Agreement comply in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations;
(vii) Neither the issuance and sale of the Securities, the Registration Statementexecution, delivery or performance of this Agreement or the Management Agreement, nor the consummation by the Adviser of the transactions herein or therein contemplated (1) conflicts or will conflict with, or constitutes or will constitute a breach of or default under, the certificate of limited partnership or limited partnership agreement, or other organizational documents, of the Adviser, (2) conflicts or will conflict with, or constitutes or will constitute a breach of or default under any agreement, indenture, lease or other instrument to which the Adviser is a party or by which it or any of its properties may be bound, (3) violates or will violate any statute, law, rule, regulation, judgment, injunction, order or decree applicable to the Adviser or any of its properties or (4) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property of assets of the Adviser is subject;
(viii) The description of the Adviser and its business in the Preliminary Prospectus and 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at thereto) under the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light caption “Management of the circumstances under which they were made, not misleadingTrust” is accurate in all material respects;
(iivi) Such To the best knowledge of such counsel knows of after reasonable inquiry, other than as described or contemplated in the Registration Statement, the Preliminary Prospectus and the Prospectus, there are no material actionactions, suit, claim suits or proceeding relating to patents, patent rights other legal or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are governmental proceedings pending or threatened against the Company Adviser or to which the Adviser or any of its officers property is subject which are required to be described in the Registration Statement, the Preliminary Prospectus or directors.the Prospectus;
(iiiix) The Company is listed Adviser owns, possesses or has obtained and currently maintains all governmental licenses, permits, consents, orders, approvals and other authorizations as are necessary for it to carry on its business as contemplated in the records of Preliminary Prospectus and the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theProspectus;
Appears in 1 contract
Samples: Underwriting Agreement (Ing Clarion Real Estate Income Fund)
Conditions to the Obligations of the Underwriters. The obligations ------------------------------------------------- of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement 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 Xxxxxx Xxxxxxx Xxxxxxxx Skadden, Arps, Slate, Meagher & XxxxxxFlom, Professional CorporationLLP, counsel for the Company, to have furnished to the Representatives xxx Xeprxxxxtatives their opinionopinion and letter, in each case dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. forms of Exhibit A and Exhibit B, respectively. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State state of New York, the General Corporation Law of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters Underwriters; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Such opinion may contain customary assumptions, exceptions, limitations, qualifications and comments. In addition, such opinion may contain statements to the effect that: (A) such counsel is expressing no opinion regarding, nor is such counsel predicting or guaranteeing, the outcome of any tobacco-related product liability case, and (B) such counsel is expressing no opinion regarding the effect of the outcome, whether financial or otherwise, of any tobacco-related product liability case on the Company. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused Gary W. Garson, general counsel for Loews Corporation, to have fuxxxxxxx xxx xxinion, dated the Closing Date and addressed to the Representatives in the form of Exhibit C.
(d) The Company shall have requested and caused Ronald S. Milstein, general counsel for Lorillard Tobacco Company, xx xxxx xxxxxxxxd his opinion, dated the Closing Date and addressed to the Representatives in the form of Exhibit D.
(e) The Representatives shall have received from Xxxxxxx Xxxxxxx Cravath, Swaine & Xxxxxxxx Moore LLP, counsel for the Underwriters, such opinion or opinions, dated xxxed the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, provided, however, that if any such representation or warranty is already -------- ------- qualified by materiality, such representation or warranty as so qualified is true and correct in all respects on and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused both Xxxxxxxx Deloitte & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Touche LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the statements under applicable accounting requirements of the captions "Risk Factors-- Our intellectual property Act and proprietary rights may be insufficient the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the minutes of the meetings of the shareholders, directors and executive and audit committees of the Company and its significant subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to protect our competitive position" transactions and "--We may be subject events subsequent to intellectual property rights disputes which could divert management's December 31, 2003, nothing came to their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that that:
(1) with respect to the aboveperiod subsequent to December 31, 2003, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-mentioned sections term debt of the Company and its subsidiaries or capital stock of the Company or decreases in the net assets or the stockholders' equity of the Company as compared with the corresponding amounts shown on the September 30, 2003 balance sheets included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from January 1, 2004 to such specified date there were any amendment decreases, as compared with the corresponding period in the preceding year in net income of the Company and its subsidiaries or supplement thereto made available in operating income of the Company and reviewed its subsidiaries, in each case, on either a total or per share basis, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by such counsel, at an explanation by the time Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(2) the information included or incorporated by reference in the Registration Statement became effective and at all times subsequent thereto up Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and on Item 402 (Executive Compensation) is not in conformity with the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement applicable disclosure requirements of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingRegulation S-K;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent Company and Trademark Office its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Final Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the holder of record of Representatives may reasonably request.
(j) Subsequent to the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselExecution Time, there are no claims shall not have been any decrease in the rating of third parties to any ownership interest or lien with respect to any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or Applications. Such counsel is not aware 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. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material defect 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 in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of the Company. To the knowledge of such counselUnderwriters hereunder may be canceled at, or at any time prior to, the Applications are being pursued Closing Date by the
Appears in 1 contract
Samples: Underwriting Agreement (Loews Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement or amendment thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplementsupplement or amendment, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationXxxxxxx, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, covering the matters set forth in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateAnnex A hereto.
(c) The Company shall have caused Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP, regulatory counsel for the Company, to have furnished to the representatives their opinion dated the closing date and addressed to the Representatives, covering the matters set forth in Annex B hereto.
(d) The Company shall have caused its general counsel to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representative covering the matters set forth in Annex C hereto.
(e) The Company shall have caused Xxxxxx Xxxxxxx Xxxxxxx, UK counsel for the Company, to have furnished the Representatives their opinion, dated the Closing Date and addressed to the Representative, covering the matters set forth in Annex D hereto.
(f) The Representatives shall have received from Xxxxxxx Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the 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.
(dg) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(h) PricewaterhouseCoopers LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives Representatives, confirming that with respect to the Company and Confinity, Inc. they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for each of the three-month periods included in the Prospectus under the captions "Prospectus Summary—Summary Consolidated Financial Information", "Prospectus Summary—Recent Developments", "Management's Discussion and Analysis of Financial Condition and Results of Operations—Sources of Revenue" and "Management's Discussion and Analysis of Financial Condition and Results of Operations—Quarterly Results of Operations" in accordance with Statement on Auditing Standards No. 71 and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, board of directors and audit committee of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to September 30, 2001, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to September 30, 2001, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its subsidiaries or capital stock of the Company or decreases in the stockholders' equity of the Company or decreases in working capital of the Company and its subsidiaries as compared with the amounts shown on the September 30, 2001 consolidated balance sheet included in the Registration Statement and the Prospectus, or for the period from October 1, 2001 to such specified date there were any decreases, as compared with the corresponding period in the preceding quarter in transaction fees, interest on funds held for others, investment management fees, loss from operations, reserve for transaction losses or in total or per share amounts of net loss of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; or
(4) the unaudited interim financial information of the Company for each of the three-month periods included in the Prospectus under the captions "Risk Factors-- Our intellectual property Prospectus Summary—Summary Consolidated Financial Information", "Prospectus Summary—Recent Developments", "Management's Discussion and proprietary rights may be insufficient to protect our competitive positionAnalysis of Financial Condition and Results of Operations—Sources of Revenue" and "--We may be subject Management's Discussion and Analysis of Financial Condition and Results of Operations—Quarterly Results of Operations" do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included in the Registration Statement and the Prospectus and in conformity with generally accepted accounting principles; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to intellectual property rights disputes which could divert managementaccounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus, including the information set forth under the captions "Prospectus Summary", "Dividend Policy", "Capitalization", "Dilution", Selected Consolidated Financial Data", "Management's attention Discussion and could be costlyAnalysis of Financial Condition and Results of Operations", "Business", Management" and "Business-- Intellectual Property,Certain Relationships and Related Party Transactions" nothing has come in the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma financial statements included in the Registration Statement and the Prospectus (the "pro forma financial statements"); carrying out certain specified procedures; inquiries of certain officials of the Company and Confinity, Inc. who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention of such counsel which caused them to believe that the abovepro forma financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-mentioned sections 02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. References to the Prospectus in this paragraph (h) include any supplement thereto at the date of the letter.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement and (exclusive of any amendment thereof) 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 (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company 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 Prospectus (exclusive of any supplement thereto made available 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 reviewed adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by such counsel, at the time the Registration Statement became effective (exclusive of any amendment thereof) and at all times subsequent thereto up the Prospectus (exclusive of any supplement thereto).
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) The Securities shall have been included for quotation on the Closing Date Nasdaq National Market, and on any later date on which Option Stock are satisfactory evidence of such actions shall have been provided to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;Representatives.
(iil) Such counsel knows At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes Exhibit A hereto from each officer and substances, owned by or affecting the business or operations director of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule Company's stockholders and option holders addressed to such opinion (the "Applications")Representatives. To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to If any of the Patents conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or Applications. Such counsel is if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not aware of any be in all material defect respects reasonably satisfactory in form in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxx Xxxx & Xxxxxxxx, counsel for the Applications are being pursued by theUnderwriters, at 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Paypal Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject subject: (i) to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein herein, to the extent such representations and warranties are subject to materiality, and to the extent not so subject, to the material accuracy of such representations and warranties, as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, ; (ii) to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the extent such statements are subject to materiality, and to the extent not so subject, to the material accuracy of such statements; and (iii) to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(bA) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx foreign counsel acceptable to the Representatives for the following foreign subsidiaries, Fossil Europe, B.V., Fossil Europe GMBH, Fossil Italia S.R.L., Fossil Spain S.A., Fossil (East), Ltd., Pulse Time, New
(B) The Company shall have caused Jenkens & XxxxxxXxxxxxxxx, Professional CorporationP.C., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and effect that: (B1) as to matters of fact, to the extent they deem proper, on certificates of responsible officers each of the Company and public officials. References to its subsidiaries, including Fossil Stores I, Inc., Fossil Stores II, Inc., Fossil Intermediate, Fossil Trust, Fossil Partners, L.P., (individually a "Subsidiary" and collectively the Prospectus "Subsidiaries") has been duly incorporated or organized and is validly existing as a corporation, individually or in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLPaggregate, counsel for in good standing under the Underwriters, such opinion laws of the jurisdiction in which it is chartered or opinions, dated the Closing Date and addressed to the Representativesorganized, with respect requisite corporate or partnership power and authority to own or lease, as the issuance case may be, and sale to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation or partnership as the case may be and is in good standing under the laws of each jurisdiction which requires such qualification, except where such failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on the Company; (2) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and Subsidiaries are owned by the Company shall have furnished to such counsel such documents as they request for the purpose either directly or through wholly owned subsidiaries free and clear of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Companyany perfected security interest and, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest other security interest, claim, lien or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theencumbrance;
Appears in 1 contract
Samples: Underwriting Agreement (Fossil 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 14 14 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Fried, Frank, Harris, Shrixxx & XxxxxxXacoxxxx, Professional Corporation, counsel xxunsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in substantially the form attached hereto as EXHIBIT A. of Exhibit B hereto. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York, the Delaware General Corporation Law or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company Company, SPX and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx Hale xxx Dorr LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that: 15 15
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) to such person's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Arthxx Andexxxx XXX to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the six-month period ended June 30, 2000, and as at June 30, 2000, in accordance with Statement on Auditing Standards No. 71 and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the six-month period ended June 30, 2000, and as at June 30, 2000; 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 statements under 16 16 comments set forth in such letter; a reading of the captions "Risk Factors-- Our intellectual property minutes of the meetings of the stockholders, directors and proprietary rights may be insufficient audit committee of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to protect our competitive position" transactions and "--We may be subject events subsequent to intellectual property rights disputes which could divert management's June 30, 2000, nothing came to their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of that:
(1) any unaudited financial statements included in the Registration Statement and any amendment or supplement thereto made available the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and reviewed with the related rules and regulations adopted by such counsel, at the time Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingProspectus;
(ii2) Such counsel knows with respect to the period subsequent to June 30, 2000, there were any changes, at a specified date not more than five days prior to the date of no material actionthe letter, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, knowin the long-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations term debt of the Company which are pending and its subsidiaries or threatened against capital stock of the Company or decreases in the stockholders' equity of the Company as compared with the amounts shown on the June 30, 2000 consolidated balance sheet included in the Registration Statement and the Prospectus, or for the period from July 1, 2000 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in net revenues or income before income taxes or in total or per share amounts of net income of the Company and its officers subsidiaries, except in all instances for changes or directors.decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or 17 17 statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent Company and Trademark Office its subsidiaries) set forth in the Registration Statement and the Prospectus agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the holder Representatives may reasonably request.
(i) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq National Market, and satisfactory evidence of record such actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from SPX and from each executive officer and director of the patents listed on a schedule Company and of SPX addressed to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications")Representatives. To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to 18 18 If any of the Patents conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or Applications. Such counsel is if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not aware of any be in all material defect respects reasonably satisfactory in form in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Hale xxx Dorr XXX, counsel for the Applications are being pursued by theUnderwriters, at 405 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, xx the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 3(c) hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has Statements have not become effective prior to the Execution Time, unless the Representatives Underwriters agree in writing to a later time, the Registration Statement Statements will become effective not later than (i) 6:00 PM P.M. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM P.M. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM P.M. New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement Statements or any part thereof 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 Statements or the Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) The Company No Underwriter shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for advised the Company, to have furnished to Company that the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware Registration Statements or the Federal laws Prospectus, or any amendment or supplement thereto, contains an untrue statement of the United Statesfact that in your opinion is material, or omits to the extent they deem proper state a fact that in your opinion is material and specified in such opinion, upon the opinion of other counsel of good standing whom they believe is required to be reliable and who are satisfactory stated therein or is necessary to counsel for make the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Datestatements therein not misleading.
(c) The Representatives Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statements and the Prospectus, there shall not have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLPbeen any change, counsel on a consolidated basis, in the capital stock, long-term debt of the Company and its subsidiaries, or any adverse change, or any development involving a prospective adverse change, in the condition (financial or other), business, prospects, net worth or results of operations of the Company and its subsidiaries, or any downgrading in the rating assigned to any securities of the Company, by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) of the UnderwritersAct) or any public announcement that any such organization has under surveillance or review its ratings of any debt securities of the Company (other than any announcement with positive implications of a possible upgrade, and no implication of a possible downgrading, of such opinion or opinions, dated rating).
(d) At the Closing Date and addressed any settlement date pursuant to the RepresentativesSection 3(c) hereof, with respect to the issuance and sale of the Securities, the Registration Statement, 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 Underwriters the opinion of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx Nelson, Mullins, Riley & Xxxxxxxx and Xxxxx Xxxxxx & XxxxxxScarborough, LLPL.L.X., intellectual property counsels for the couxxxx xx xxx Company, to have furnished to the Representatives their opiniondated such date, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As the Company and each of its Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business;
(ii) the Company and its subsidiaries have all necessary franchises or permits for natural gas operations in all communities now served, except as set forth in the Registration Statements and except where the failure to be so authorized by franchise or permit does not, in the opinion of such counsel, materially affect the right of the Company or such subsidiary to the use of its properties or the conduct of its business; and the franchises of the Company and its subsidiaries referred to in the Registration Statements are good and valid except for and subject only to such defects as may be set forth or referred to in the Registration Statements, and such others as do not, in the opinion of such counsel, materially affect the right of the Company or such subsidiary to the use of its properties or the conduct of its business, and said franchises impose no materially burdensome restrictions;
(iii) all outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the best knowledge of such counsel, any other security interests, claims, liens or encumbrances;
(iv) the Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms to the description thereof contained in the Prospectus; all outstanding shares of Common Stock, the Underwritten Securities and any Option Securities being delivered on the date of such opinion have been duly authorized and validly issued and are fully paid and nonassessable; any Option Securities to be delivered after the date of such opinion have been duly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the Securities have been duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange; the certificates for the Securities are in valid and sufficient form; and no securityholder of the Company is entitled to preemptive or other rights to subscribe for the Securities;
(v) The documents incorporated by reference in the Prospectus (other than the financial statements and supporting schedules included therein or omitted therefrom, as to which such counsel expresses no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder;
(vi) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries of a character required to be disclosed in the Registration Statements by Item 103 of Regulation S-K which is not adequately disclosed in the Prospectus, there is no statute required to be described in the Prospectus that is not described as required, and to the best of such counsel's knowledge there is no franchise, contract or other document of a character required to be described in the Registration Statements or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the descriptions in the Registration Statements or Prospectus, of statutes, legal and governmental proceedings, and other matters of law (other than (i) descriptions under the captions caption "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive positionMaterial United States Federal Income Tax Consequences" and "--We may Material United States Tax Consequence to Non-U.S. Holders of Common Stock" in the Prospectus and (ii) the matters covered by the opinion required by Section 6(d)(ii) herein), the Company's certificate of incorporation and bylaws, contracts and other documents are correct in all material respects and fairly present the information required to be subject shown;
(vii) the Registration Statements have become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to intellectual property rights disputes which could divert management's attention Rule 424(b) has been made in the manner and could be costly" and "Business-- Intellectual Property," nothing has come within the time period required by Rule 424(b) pursuant to the attention subparagraph of Rule 424(b) specified in such opinion; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statements or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; the Registration Statements and the Prospectus comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel which caused them has no reason to believe that at the above-mentioned sections of Effective Date the Registration Statement and Statements contained any amendment untrue statement of a material fact or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up omitted to and on the Closing Date and on state any later date on which Option Stock are material fact required to be purchasedstated therein or necessary to make the statements therein not misleading or that the Preliminary Prospectus or the Prospectus, contained as of its date or as of date of such opinion, included any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Registration Statements, the Preliminary Prospectus or the Prospectus and that such counsel may rely solely on certificates of officers of the Company with respect to statistical data contained in the Registration Statements, the Preliminary Prospectus or the Prospectus;
(iiviii) Such counsel knows this Agreement has been duly authorized, executed and delivered by the Company;
(ix) no consent, approval, authorization or order of no material actionany court or governmental agency or body is required for the consummation of the transactions contemplated herein, suitexcept such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issue and sale of the Securities, claim nor the consummation of the other transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or proceeding relating to patents, patent rights constitute a default under the Articles of Incorporation or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, knowBy-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations Laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which are pending or threatened against the Company or any of its officers subsidiaries is a party or directors.bound, or any statute, rule, order or regulation known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries; and the Company has full corporate power and authority to authorize, issue and sell the Securities as contemplated by this Agreement;
(iiixi) The no holders of securities of the Company have rights to the registration of such securities under the Registration Statements; and
(xii) the Company is listed in a "holding company" within the records meaning of the United States Patent and Trademark Office Public Utility Holding Company Act of 1935, as the holder of record of the patents listed on a schedule to such opinion amended (the "PatentsHolding Company Act") and each that is exempt from all provisions of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselHolding Company Act, there are no claims of third parties to any ownership interest or lien with respect to any except Section 9(a)(2) thereof, by order of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theCommission pursuant to Section 3(a)(5)
Appears in 1 contract
Samples: Underwriting Agreement (Piedmont Natural Gas Co Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Squire, Sanders & Xxxxxx, Professional CorporationDempsey L.L.P., counsel for the CompanyCompany and the Guarantox, (xx) Appleby, Spurling & Kempe, Bermuda counsel for the Guarantor and (xxx) Xxane K. Xxxumacher, General Counsel to have furnished the Company and the Guaranxxx, xx xxxx xxxxxxhed to the Representatives their opinionopinions, dated the Closing Date and addressed to the Representatives, to the effect set forth in substantially the form attached hereto as EXHIBIT A. Annexes A, B and C, respectively, hereto. In rendering such opinionopinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Delaware Ohio and New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinionopinions, 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 the Guarantor and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx Simpson, Thacher & Xxxxxxxx LLPBartlett, counsel for the Underwriters, such opinion or opinions, dated the xxe Closing Date and addressed to the Representatives, with respect to the issuance and sale of the SecuritiesSecurities (including the Guarantee), the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company and the Guarantor shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company and the Guarantor, signed by an executive officer of the Company and of the Guarantor who has specific knowledge of the Company's and Guarantor's financial matters and who is satisfactory to the Representatives, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the Guarantor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company and the Guarantor have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop-order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's or the Guarantor's knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change or any development involving a prospective material adverse change in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, Ernst & Young LLP shall have furnished to the Representatives, at the request of the Company and the Guarantor, letters, dated respectively as of the Execution Time and as of the Closing Date and addressed to the Representatives Representatives, in form and substance reasonably satisfactory to the effect that:
(i) As Representatives, containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters with respect to the financial statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of certain financial information contained or incorporated by reference in the Registration Statement and any amendment or supplement thereto made available and reviewed by such counselthe Final Prospectus, at provided that the time the Registration Statement became effective and at all times subsequent thereto up to and letter delivered on the Closing Date shall use a "cut-off" date no more than three business days prior to the Closing Date.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and on the Final Prospectus (exclusive of any later date on which Option Stock are supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to be purchasedin paragraph (e) of this Section 6 or (ii) any change, contained or any untrue statement development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the 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) and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's or the Guarantor's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material fact respects when and as provided in this Agreement, or omitted 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 state a material fact the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and the Guarantor in writing or by telephone or facsimile confirmed in writing. The documents required to be stated therein or necessary to make delivered by this Section 6 shall be delivered at the statements thereinoffice of Simpson, in light of Thacher & Bartlett, counsel for the circumstances under which they were madeUnderwriters, not misleading;
(ii) Such counsel knows of no material actionat 425 Lexington Avenue, suitNew Yorx, claim or proceeding relating to patentsXxx Xork 10017, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting on the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsClosing Date.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree Representative agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Hxxxx & XxxxxxHxxxxxx L.L.P., Professional CorporationU.S. counsel for the Company, and Fxxxxxx Mxxxxx Casgrain LLP, Canadian counsel for the Company, to have furnished to the Representatives Representative their opinionopinions substantially in the forms set forth in Exhibits D-1 and D-2 hereto, respectively, dated the Closing Date and any settlement date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateRepresentative.
(c) The Representatives Representative shall have received from Xxxxxxx Xxxxxxx Cxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx Hxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for furnished to the Representative a certificate of the Company, to have furnished to signed by the Representatives their opinionChairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and addressed any settlement date, to the Representatives effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 and any settlement date with the same effect as if made on the Closing Date and any settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date and any settlement date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representative letters, at the Execution Time and at the Closing Date and any settlement date, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the Representative, confirming that it is an independent registered public accounting firm within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the statements under applicable accounting requirements of the captions "Risk Factors-- Our intellectual property Act and proprietary rights may be insufficient the Exchange Act and the respective related rules and regulations adopted by the Commission;
(ii) on the basis of carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards); a reading of the minutes of the meetings of the shareholders and directors of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to protect our competitive position" transactions and "--We may be subject events subsequent to intellectual property rights disputes which could divert management's June 30, 2005, nothing came to their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that that:
(1) with respect to the aboveperiod subsequent to June 30, 2005, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-mentioned sections term debt of the Company and its subsidiaries or capital stock of the Company as compared with the amounts shown on the June 30, 2005 consolidated balance sheet included or incorporated by reference in the Registration Statement and any amendment the Final Prospectus, except in all instances for changes or supplement thereto made available and reviewed decreases set forth in such letter, in which case the letter shall be accompanied by such counsel, at an explanation by the time Company as to the significance thereof unless said explanation is not deemed necessary by the Representative;
(2) the information included or incorporated by reference in the Registration Statement became effective and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12.1 of the Registration Statement, including the information set forth under the captions “Prospectus Supplement Summary,” “Risk Factors,” “Dividend Policy” and “Capitalization” in the Final Prospectus, the information included or incorporated by reference in Items 1, 2, 5, 6, 7, 7A and 11 of the Company’s Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Final Prospectus and agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at all times subsequent thereto up the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and on the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any Material Adverse Effect, except as set forth in or contemplated in 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 Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date and any settlement date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(h) The Securities shall have been approved for quotation on the Nasdaq National Market and the Toronto Stock Exchange, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representative.
(i) At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A to this Agreement from each officer and director of the Company addressed to the Representative.
(j) The Underwriters having received duly completed and executed Subscription Agreements from purchasers in the Canadian Jurisdictions by no later than 5:00 p.m. (New York time) on September 23, 2005. If any later date on which Option Stock are of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be purchasedcanceled at, contained or at any untrue statement time prior to, the Closing Date by the Representative. Notice of a material fact such cancellation shall be given to the Company in writing or omitted to state a material fact by telephone or facsimile confirmed in writing. The documents required to be stated therein or necessary to make delivered by this Section 6 shall be delivered at the statements thereinoffice of Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, in light of counsel for the circumstances under which they were madeUnderwriters, not misleading;
(ii) Such counsel knows of no material actionat Oxx Xxxxxxx Xxxxx, suitXxx Xxxx, claim or proceeding relating to patentsXxx Xxxx 00000, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting on the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsClosing Date.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Firm 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 Shipping Entities 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 Shipping Entities made in any certificates pursuant to the provisions hereof, to the performance by the Company Shipping Entities of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Operative Agreements, the Common Units, the Subordinated Units, the IDRs, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement, the transactions contemplated hereby and the Transactions shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) The Bank Credit Facility shall have been duly authorized, executed and delivered by the Operating Company and each of the other parties thereto.
(d) The Partnership shall have requested and caused Xxxxxx Xxxxxxx Fulbright & Xxxxxxxx & Xxxxxx, Professional CorporationL.L.P., counsel for the CompanyPartnership, to have furnished to the Representatives their opinion, dated the Closing Date or the settlement date, as applicable, and addressed to the Representatives, in substantially to the form attached hereto as EXHIBIT A. In rendering such effect set forth on Exhibit B.
(e) The Partnership shall have requested and caused Xxxxxx & Xxxxxx L.L.P., special counsel for the Partnership, to have furnished to the Representatives their opinion, such counsel may rely (A) as to matters involving dated the application of laws of any jurisdiction other than the State of Delaware Closing Date or the Federal laws of settlement date, as applicable, and addressed to the United StatesRepresentatives, to the extent they deem proper effect set forth on Exhibit C.
(f) The Partnership shall have requested and specified in such opinioncaused Holland & Knight LLP, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to special maritime counsel for the Underwriters Partnership, to have furnished to the Representatives their opinion, dated the Closing Date or the settlement date, as applicable, and (B) as addressed to matters of factthe Representatives, to the extent they deem proper, effect set forth on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.Exhibit D.
(cg) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date Date, or the settlement date, as applicable, and addressed to the Representatives, with respect to the issuance and sale of the SecuritiesUnits, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(dh) The Company Partnership shall have furnished to the Representatives a certificate of (i) the General Partner, in its capacity as the sole member of the Mgmt LLCs and as the general partner of the Partnership, in its capacity as the sole member of the Operating Company, in its capacity as the sole member of Shipping LLC (in its capacity as the sole member of the Shipping LLC Subsidiaries) and Chemical LLC (in its capacity as the sole member of the Chemical LLC Subsidiaries), signed by the Chairman of the Board or the President and the principal financial or accounting officer of the General Partner, and (ii) Shipping Master, signed by the Chairman of the Board or the President and the principal financial or accounting officer of Shipping Master, in case, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Shipping Entities in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Shipping Entities have complied with all the agreements set forth herein and satisfied all the conditions set forth herein on their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to such entities’ knowledge, threatened;
(iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Partnership Group, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and
(iv) such other matters as you may reasonably request.
(i) The Partnership shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, PricewaterhouseCoopers LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Partnership for the 6-month period ended June 30, 2004, and as at June 30, 2004, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Partnership and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the six-month period ended June 30, 2004, and as at June 30, 2004; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the executive, finance, compensation and audit committees of the Partnership and the Subsidiaries; and inquiries of certain officials of the Partnership who have responsibility for financial and accounting matters of the Partnership and its subsidiaries as to transactions and events subsequent to June 30, 2004, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to June 30, 2004, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Partnership and its subsidiaries or capital stock of the Partnership or decreases in the unitholders’ equity of the Partnership as compared with the amounts shown on the June 30, 2004 consolidated balance sheet included in the Registration Statement and the Prospectus, or for the period from July 1, 2004 to such specified date there were any decreases, as compared with the corresponding period in the preceding year and quarter in net revenues or income before income taxes or in total or per share amounts of net income of the Partnership and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Partnership as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Partnership and its subsidiaries) set forth in the Registration Statement and the Prospectus, including the information set forth under the captions "Risk Factors-- Our intellectual property “Summary Historical and proprietary rights may be insufficient to protect our competitive position" Pro Forma Financial and "--We may be subject to intellectual property rights disputes which could divert management's attention Operating Data,” “Capitalization,” “Dilution,” “Selected Historical and could be costly" Pro Forma Financial and "Business-- Intellectual Property," nothing has come Operating Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in the Prospectus, agrees with the accounting records of the Partnership and its subsidiaries, excluding any questions of legal interpretation; and
(iv) an examination or review “report” is required for substantial pro formas as specified in (i) above on the basis of a reading of the unaudited pro forma financial statements included in the Registration Statement and the Prospectus (the “pro forma financial statements”); carrying out certain specified procedures; inquiries of certain officials of the Partnership who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention of such counsel which caused them to believe that the abovepro forma financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-mentioned sections 02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. References to the Prospectus in this paragraph (i) include any supplement thereto at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement and (exclusive of any amendment thereof) 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 (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Partnership Group taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto made available 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 reviewed adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Units as contemplated by such counsel, at the time the Registration Statement became effective (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) The NYSE shall have approved the Units for listing, subject only to official notice of issuance.
(m) At the Execution Time, the Partnership shall have furnished to the Representatives a letter substantially in the form of Exhibit E hereto from each officer and director of the General Partner and Shipping Master addressed to the Representatives.
(n) Prior to the Closing Date, the Shipping Entities shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at all times subsequent thereto up any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to and the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Fulbright & Xxxxxxxx L.L.P., counsel for the Partnership, at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 , on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsDate.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Samples: Underwriting Agreement (U.S. Shipping Partners L.P.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx & Xxxxxx, Professional CorporationLLP, counsel for the CompanyCompany and the Selling Stockholders, to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in substantially the form set forth in Exhibits B and C hereto.
(c) The Company shall have requested and caused Xxxxxxxxx, Xxxxxx & Preston L.L.P. , Maryland counsel for the Company to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified set forth in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateExhibit D hereto.
(cd) The Company shall have requested and caused Xxxx X. Xxxx, General Counsel for the Company to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form set forth in Exhibit E hereto.
(e) The Representatives shall have received from Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(g) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by such Selling Stockholder, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement, that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(h) The Company shall have requested and caused both Xxxxxxxx Ernst & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Young LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Representatives, confirming that they are independent registered accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company as of and for the three-month and six-month periods ended June 30, 2005, in accordance with Statement on Auditing Standards No. 100 and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules reported on by them and the pro forma financial information included in the Registration Statement and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the three-month and six-month periods ended June 30, 2005, and as at June 30, 2005; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards or the standards of the Public Company Accounting Oversight Board (United States)) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the audit and compensation committees of the Company and the subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2004, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to June 30, 2005, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt, net, of the Company and its subsidiaries or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the June 30, 2005 consolidated balance sheet included in the Registration Statement and the Prospectus, or for the period from July 1, 2005 to such specified date there were any decreases, as compared with the corresponding period in the preceding quarter in total revenues, gross profit or income before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus, including the information set forth under the captions "“Prospectus Summary”, “Risk Factors-- Our intellectual property Factors”, “Use of Proceeds”, “Capitalization”, “Dilution”, “Selected Financial Data”, “Unaudited Pro Forma Condensed Consolidated Financial Statements”, “Management’s Discussion and proprietary rights may be insufficient to protect our competitive position" Analysis of Financial Condition and "--We may be subject to intellectual property rights disputes which could divert management's attention Results of Operations”, “Business”, “Management”, “Certain Relationships and could be costly" Related Party Transactions”, “Description of Other Indebtedness”, “Description of Capital Stock” and "Business-- Intellectual Property," nothing has come “Shares Eligible for Future Sale” in the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation.
(iv) on the basis of a reading of the unaudited pro forma financial statements included in the Registration Statement and the Prospectus (the “pro forma financial statements”); carrying out certain specified procedures; inquiries of certain officials of the Company who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention of such counsel which caused them to believe that the abovepro forma financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-mentioned sections 02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. The Company shall have received from Ernst & Young LLP (and furnished to the Representatives) a report with respect to a review of unaudited interim financial information of the Company for each of the eight quarters ended December 31, 2004, in accordance with Statement on Auditing Standards No. 100.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement and (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company 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 Prospectus (exclusive of any supplement thereto made available 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 reviewed adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by such counsel, at the time the Registration Statement became effective (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto).
(j) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) The Securities shall have been quoted and admitted and authorized for trading on the Nasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(l) At the Execution Time, the Company and the Selling Stockholders shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from the Selling Stockholders, each executive officer and director and director nominee of the Company and Cypress Merchant Banking Partners L.P., Cypress Offshore Partners L.P., Scotsman Partners, L.P., Odyssey Investment Partners Fund, LP, Odyssey Coinvestors, LLC, MidOcean Capital Partners New US, LP, and Xxxxx X. Xxxxxxx addressed to the Representatives.
(m) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. If any of the 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 all times subsequent thereto up any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company and each Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, at approximately 9:00 A.M., on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsDate.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Samples: Underwriting Agreement (Williams Scotsman International Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM P.M. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM 4:30 P.M. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM 4:30 P.M. New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx furnished to the Underwriters the opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx & Xxxxxx, Professional Corporation("Xxxx Xxxxx"), counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As Assuming that the Securities have been duly authenticated by the Trustee, the Securities have been duly executed, issued and delivered and constitute valid and legally binding obligations of the Company and are entitled to the statements benefits provided by the Indenture subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors rights and to general equity principles; and the Securities and the Indenture conform in all material respects to the descriptions thereof in the Final Prospectus;
(ii) The Indenture has been duly executed and delivered by the Company and constitutes a valid and legally binding instrument, enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Indenture has been duly qualified under the captions "Risk Factors-- Our intellectual property Trust Indenture Act;
(iii) This Agreement has been duly executed and proprietary rights delivered by the Company;
(iv) No consent, approval, authorization, order, registration or qualification of or with any New York or federal court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by the Final Prospectus, this Agreement or the Indenture, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be insufficient to protect our competitive position" required under state or foreign securities or Blue Sky laws in connection with the purchase and "--We may be subject to intellectual property rights disputes which could divert management's attention distribution of the Securities by the Underwriters;
(v) The third and could be costly" fourth sentences of the first paragraph and "Business-- Intellectual Property," nothing has come the first, second and third sentences of the second paragraph of the section of the Final Prospectus relating to the attention Securities captioned "Certain Considerations -- Income Taxes" contain a fair and accurate general description of the U.S. Federal tax provisions discussed therein; and
(vi) The Registration Statement has become effective under the Act. To the knowledge of such counsel, no stop order has been issued and no proceedings for that purpose have been instituted or threatened. In addition, such counsel shall state that on the basis of the participation of such counsel in conferences at which caused them to believe that the above-mentioned sections contents of the Registration Statement and the Final Prospectus and related matters were discussed, but without independent verification by such counsel of the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Final Prospectus, any amendment or supplement thereto or any documents incorporated by reference in the Final Prospectus or any amendment or supplement thereto, that they have no knowledge that (other than the Statement of Eligibility on Form T-1, financial statements, schedules and other financial or statistical data which are or should be contained therein, as to which such counsel need express no statement):
(A) The documents incorporated by reference in the Final Prospectus or any further amendment or supplement thereto made available by the Company prior to the Closing Date, when they became effective or were filed with the Commission, as the case may be, (i) did not comply as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and reviewed the rules and regulations of the Commission thereunder; and (ii) contained in the case of a registration statement which became effective under the Act, an untrue statement of a material fact, or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Exchange Act with the Commission, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading;
(i) The Registration Statement and the Final Prospectus and any further amendment and supplements thereto made by such counselthe Company prior to the Closing Date, at did not comply as to form in all material respects with the time requirements of the Act and the rules and regulations thereunder; (ii) as of their respective effective date, the Registration Statement became effective and at all times subsequent or any further amendment thereto up made by the Company prior to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Final Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing Date contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under in which they were made, not misleading or that, as of the Closing Date, either the Registration Statement or the Final Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing Date contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
; and (iiiii) Such counsel knows any amendment to the Registration Statement required to be filed with the Commission or of no material action, suit, claim any contracts or proceeding relating other documents of a character required to patents, patent rights be filed as an exhibit to the Registration Statement or licenses, trademarks required to be incorporated by reference into the Final Prospectus or trademark rights, copyrights, collaborative research, licenses required to be described in the Registration Statement or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company Final Prospectus which are pending not filed or threatened against the Company incorporated by reference or any of its officers or directorsdescribed as required.
(iiic) The Company is listed in shall have furnished to the records Underwriters the opinion of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselXxxxxxx Xxxxx, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of Esq., General Counsel for the Company. , dated the Closing Date, to the effect that:
(i) To the knowledge of such counsel, the Applications Company has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and declarations and filings with, all federal, state, local and other governmental authorities, to own, lease, license, and use its properties and assets and to conduct its business in the manner described in the Final Prospectus (except for such consents, authorizations, approvals, orders, licenses, certificates, permits, declarations and filings, which the failure to have obtained, individually or in the aggregate, does not and can reasonably be expected in the future not to have a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken as a whole);
(ii) To the knowledge of such counsel, HAL Antillen N.V. ("HAL") has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and declarations and filings with, all federal, state, local, and other governmental authorities, to own, lease, license, and use its properties and assets and to conduct its business in the manner described in the Final Prospectus (except for such consents, authorizations, approvals, orders, licenses, certificates, permits, declarations and filings, which the failure to have obtained, individually or in the aggregate, does not, and can reasonably be expected in the future not to, have a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken as a whole);
(iii) To the knowledge of such counsel, except as set forth in Schedule IV to this Agreement, all of the issued shares of capital stock of each Subsidiary of the Company are being pursued owned directly or indirectly by thethe Company, free and clear of all liens, encumbrances, security interests or claims;
(iv) To the knowledge of such counsel, and other than as set forth in the Final Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its Subsidiaries is a party or of which any property of the Company or any of its Subsidiaries is the subject which, if determined adversely to the Company or any of its Subsidiaries, could reasonably be expected to individually or in the aggregate have a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and its Subsidiaries, taken as a whole; and, to the knowledge of such counsel, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(v) To the knowledge of such counsel, the issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or to which any of the property or assets of the Company or any of the Subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or, to the knowledge of such counsel, any statute or any order, rule or regulation binding on the Company or any of the Subsidiaries or any of their properties; and
(vi) To the knowledge of such counsel, the Company is not i) in violation of, or in default with respect to, any law, rule, regulation, order, judgment or decree, except as may be properly described in the Final Prospectus or such as in the aggregate do not now have, and can reasonably be expected in the future not to have, a material adverse effect on the general affairs, business, financial position, shareholders' equity or results of operations of the Company and the Subsidiaries, taken as a whole; nor is the Company required to take any action in order to avoid any such violation or default; ii) in violation or breach of, or in default with respect to, complying with any material provision of any contract, agreement, instrument, lease, license, arrangement or understanding which is material to the Company and its Subsidiaries, taken as a whole; or iii) in violation or breach of, or in default with respect to, any term of its certificate of incorporation (or other charter document) or by-laws.
(d) The Company shall have furnished to the Underwriters the opinion of Xxxxx, Xxxxxxx y Xxxxxx, Panamanian counsel for the Company, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Republic of Panama, with power and authority (corporate and other) to own, lease, license and use its properties and conduct its business as described in the Final Prospectus;
(ii) This Agreement, the Indenture and the Securities have been duly authorized;
(iii) No consent, approval, authorization, order, registration or qualification of or with any Panamanian court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters;
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM a.m. on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that the purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinionthe opinion of Eric X. Xxxxxx, Xxnior Vice President and General Counsel of the Company, dated the Closing Date and addressed to the RepresentativesDate, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to each of the statements Company, National Education Corporation, Harcourt Brace & Company and The Neiman Marcus Group, Inc. (individually a "Subsidiary" and collectively the "Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property laws of the jurisdiction in which it is chartered or organized, with full corporate power and proprietary rights may authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business (except in those jurisdictions in which the failure to be insufficient to protect our competitive position" so qualified or in good standing would not have a material adverse effect on the business or financial condition of the Company and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to would not (after qualification) preclude the attention Company from enforcing claims against any party in the courts of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingjurisdiction);
(ii) Such counsel knows all of no material actionthe outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, suitand, claim or proceeding relating to patentsexcept as otherwise set forth in the Prospectus, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, all outstanding shares of capital stock of the Subsidiaries are owned by or affecting the business or operations of the Company which are pending either directly or threatened against the Company or through wholly owned subsidiaries free and clear of any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule perfected security interest and, to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest other security interests, claims, liens or lien with respect to any of encumbrances;
(iii) the Patents or Applications. Such counsel Company's authorized equity capitalization is not aware of any material defect in form as set forth in the preparation or filing of Prospectus; and the Applications on behalf of Securities conform in all material respects to the description thereof contained in the Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered by the Company. To , has been duly qualified under the knowledge Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of such counselremedies, the Applications are being pursued by theto applicable bankruptcy, reorganization,
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Stroock & Xxxxxx, Professional CorporationStroock & Xxxxx LLP, counsel for the Company, to have furnished to the Representatives their opinionopinion (which opinion shall not include matters relating to the Federal Communications Law), dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to each of the statements Company and the Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement jurisdiction in which it is chartered or organized, with full corporate power and any amendment authority to own or supplement thereto made available lease, as the case may be, and reviewed by to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such counselqualification wherein it owns or leases material properties or conducts material business and where the failure to be so qualified would, at individually or in the time the Registration Statement became effective and at all times subsequent thereto up to and aggregate, have a material adverse effect on the Closing Date and on any later date on which Option Stock are to be purchasedcondition (financial or otherwise), contained any untrue statement of a material fact prospects, earnings, business or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light properties of the circumstances 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 Prospectus (exclusive of any supplement thereto); notwithstanding the foregoing, either the Company or its relevant subsidiary is duly qualified to do business as a foreign corporation and is in good standing under which they were madethe laws of Arizona, not misleading;
California, Colorado, Florida, Illinois, New York and Texas; (ii) Such counsel knows all the outstanding shares of no material actioncapital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, suitand, claim or proceeding relating to patentsexcept as otherwise set forth in the Prospectus, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, all outstanding shares of capital stock of the Subsidiaries are owned by or affecting the business or operations of the Company which are pending either directly or threatened against the Company or through wholly owned subsidiaries free and clear of any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule perfected security interest and, to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest other security interest, claim, lien or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theencumbrance;
Appears in 1 contract
Samples: Underwriting Agreement (Radio Unica Communications Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such dateate; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b), or if the filing of the Rule 434 Term Sheet is required pursuant to Rule 434, the Rule 434 Term Sheet will be filed in the manner and within the time period required by Rule 424(b)434; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx furnished to the Representatives the opinion of Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to each of the statements Company and Fleet National Bank ("Fleet Bank-RI") and any other subsidiary or subsidiaries which the Representatives may reasonably request (individually a "Subsidiary" and collectively the "Subsidiaries") has been duly incorporated and is validly existing as a corporation or national banking association in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus; the Company is duly qualified to do business as a foreign corporation under the laws of the State of New York and neither the Company nor Fleet Bank-RI or any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact other Subsidiaries is required to be stated therein or necessary qualified to make do business as a foreign corporation under the statements thereinlaws of any other jurisdiction; and the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, in light of the circumstances under which they were made, not misleadingas amended;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting all the business or operations outstanding shares of the Company which capital stock of Fleet Bank-RI and any such other Subsidiaries have been duly and validly authorized and issued and are pending or threatened against the Company or any of its officers or directors.
fully paid and (iii) The Company is listed except as provided in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the12 U.S.C.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationLLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their its opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office form attached hereto as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theExhibit A.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Milbank, Tweed, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationXxXxxx LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements Company has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement State of Delaware, with corporate power and any amendment authority to own or supplement thereto made available lease, as the case may be, its properties and reviewed by such counsel, at conduct its business as described in the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingProspectus;
(ii) Such counsel knows each of no material actionGFInet inc., suitFenics Software, claim Inc. and GFI Brokers LLC is validly existing as a corporation or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting as a limited liability company in good standing under the business or operations laws of the Company which are pending State of Delaware, with corporate power and authority or threatened against limited liability company power and authority, as the Company case may be, to own or any lease, as the case may be, its properties and conduct its business as described in the Prospectus; each of GFI Group LLC, GFI Securities LLC and GFI (HK) Securities LLC is validly subsisting as a limited liability company under the laws the State of New York, with limited liability company power and authority to own or lease, as the case may be, its officers or directors.properties and conduct its business as described in the Prospectus;
(iii) The Company is listed the Company’s authorized equity capitalization is, as of the Closing Date (giving effect to the transactions occurring on the Closing Date), as set forth in the records section of the United States Patent Prospectus entitled “Cash and Trademark Office as Capitalization” in the holder of record rows title “common stock” and “preferred stock”; the capital stock of the patents listed on a schedule Company conforms in all material respects to such opinion the description thereof contained in the Prospectus; the Securities being sold under this Agreement by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; and the Securities being sold under this Agreement by the Selling Stockholders have been duly and validly authorized and issued and are fully paid and nonassessable;
(the "Patents"iv) and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are is no claims of third parties contract or other document which is required by the Act and the rules and regulations thereunder to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form be described in the preparation Registration Statement or the Prospectus, or to be filed as an exhibit thereto, which has not been so described or filed;
(v) the statements in the Prospectus under the captions “Our Business-Regulation— U.S. Regulation and Certain Clearing Arrangements,” “Our Business — Our Reorganization,” “Certain Relationships and Related Transactions,” “Description of Capital Stock,” “Description of Certain Indebtedness,” “Shares Eligible for Future Sale,” and “Material United States Federal Income and Estate Tax Considerations for Non-U.S. Holders,” insofar as such statements summarize certain legal matters and certain provisions of certain agreements or documents, provide a fair summary of such legal matters and such provisions of such agreements or documents;
(vi) the Registration Statement has become effective under the Act; any required filing of the Applications on behalf of Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the Company. To manner and within the time period required by Rule 424(b); and to the knowledge of such counsel, no stop order suspending the Applications effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or are being pursued pending;
(vii) the Registration Statement, as of the Effective Date, and the Prospectus, as of it date, comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder, except that such counsel need not express any opinion as to the financial statements, notes thereto and schedules included therein or excluded therefrom or other financial, accounting and statistical data included therein or excluded therefrom;
(viii) this Agreement has been duly authorized, executed and delivered by thethe Company;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(x) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required by any Applicable Law (as defined below) in connection with the issue and sale of the Securities by the Company in the manner contemplated by this Agreement, except such as (i) have been obtained under the Act and the Exchange Act, (ii) may be required under the securities or blue sky laws of the various states in connection with the purchase and distribution of the Securities by the Underwriters (as to which such counsel need not express any opinion), and (iii) may be required by the 2700 series of the rules and regulations of the National Association of Securities Dealers, Inc. (the “NASD”) (as to which such counsel need not express any opinion). “Applicable Law” means the Delaware General Corporation Law, the Delaware Limited Liability Company Act, the rules and regulations of the NASD and those laws and regulations of the State of New York and those Federal laws and regulations of the United States of America that in each case, in the experience of such counsel, are customarily recognized to apply to transactions of the kind contemplated by this Agreement;
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Underwritten Securities and the Option Securities, as the case may be, shall Certificates will be subject to the 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 hereofBank herein, to the accuracy of the statements of officers of the Company Bank made in any certificates pursuant to the provisions hereof, to the performance by the Company Bank of its obligations hereunder and to the following additional conditionsconditions precedent:
(ai) On or prior to the date of this Agreement, the Underwriters shall have received a letter, dated the date of this Agreement, of KPMG Peat Marwick and substantially in the form heretofore agreed and otherwise in form and substance agreed to by the Underwriters.
(ii) If the Registration Statement has not become effective prior to the Execution Timedate of this Agreement, unless the Representatives Underwriters agree in writing to a later time, the Registration Statement will shall have become effective not later than (iA) 6:00 PM p.m., New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM 12:00 noon, New York City time time, on such date or (iiB) 9:30 AM 3:00 p.m. on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM 12:00 noon, New York City time time, on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will Prospectus shall be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(iii) Subsequent to the execution and delivery of this Agreement, there shall have not occurred (a) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Bank [or USAA Capital Corporation] which, in the reasonable judgment of the Underwriters materially impairs the investment quality of either Class of Certificates; (b) The Company any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Bank or of [USAA Capital Corporation] on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (c) any banking moratorium declared by Federal, New York or Texas authorities; or (d) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of, and any payment for, the Certificates.
(iv) You shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their received an opinion, dated the Closing Date Date, of Xxxxxxx X. Xxxxxx, Vice President and addressed Banking Counsel of the Bank, substantially to the Representativeseffect that:
(a) The Bank (1) has been duly chartered and is validly existing as a federal savings association under the laws of the United States, (2) has the power and authority to own its properties and conduct its business as described in substantially the form attached hereto Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables;
(b) The Bank has the power and authority to execute and deliver this Agreement and the Pooling and Servicing Agreement and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any Texas or federal governmental agency or body or any court is required by the Bank to perform the transactions contemplated by this Agreement or the Pooling and Servicing Agreement except for (1) filing of a Uniform Commercial Code financing statement in the State of Texas with respect to the transfer of the Receivables to the Trust pursuant to the Pooling and Servicing Agreement and (2) such consents, approvals, authorizations, orders or filings as EXHIBIT A. may be required under the federal and state securities laws;
(d) None of the execution, delivery and performance by the Bank of this Agreement or the Pooling and Servicing Agree- ment, the transfer of the Receivables to the Trust, the assignment of the security interests of the Bank in the Financed Vehicles, the issuance and sale of the Certificates or the consummation of any other of the transactions contemplated herein or in the Pooling and Servicing Agreement, will conflict with, result in a breach, violation or acceleration of any of the terms of, or constitute a default under, the By-Laws or the Charter of the Bank, as amended, or, to the best of such counsel's knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to the Bank of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Bank or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Bank is a party or by which it or its properties are bound;
(e) To the best knowledge of such counsel, after due inquiry, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of this Agreement, or the Pooling and Servicing Agreement, or either Class of the Certificates, (2) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Pooling and Servicing Agreement, or (3) seeking adversely to affect the federal income tax attributes of either Class of Certificates as described in the Prospectus under the headings "Prospectus Summary -- Tax Status" and "Certain Federal Income Tax Consequences";
(f) The Pooling and Servicing Agreement, has been duly authorized, executed and delivered by the Bank;
(g) This Agreement has been duly authorized, executed and delivered by the Bank; and
(h) The statements in the Prospectus under the caption "Certain Legal Aspects of the Receivables," to the extent they constitute matters of law or legal conclusions, are correct in all material respects. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of Texas and the United States, to the extent they deem deemed proper and specified stated in such opinion, upon the opinion of other qualified counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters standing, and (B) as to matters of fact, to the extent they deem properdeemed proper and as stated therein, on certificates of responsible officers of the Company Trust, the Bank and public officials. References to the Prospectus in this paragraph (biv) include any supplements thereto at the Closing Datethereto.
(cv) The Representatives You shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their an opinion, dated the Closing Date and addressed of Xxxxx, Day, Xxxxxx & Xxxxx, special counsel to the Representatives Bank, substantially to the effect that:
(ia) As The Certificates have been duly and validly authorized and, when executed, authenticated and issued in accordance with the terms of the Pooling and Servicing Agreement, and delivered to and paid for by the Underwriters pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections benefits of the Registration Statement Pooling and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingServicing Agreement;
(iib) Such counsel knows of no material actionAssuming the authorization, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes execution and substances, owned delivery thereof by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien Trustee with respect to any the Pooling and Servicing Agreement, such agreement constitutes the legal, valid and binding agreement of the Patents Bank, enforceable against the Bank in accordance with its terms, subject, as to enforcement, to (1) the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or Applications. Such counsel is not aware other similar laws of any material defect in form in general application relating to or affecting creditors' rights generally or the preparation or filing rights of creditors of federal savings associations; (2) the Applications on behalf application of the Company. To the knowledge general principles of such counsel, the Applications are being pursued by theequity (regard-
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The -------------------------------------------------- obligations of the Underwriters to purchase the Underwritten Securities and the any Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company [and the Selling Stockholders] contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company [and the Selling Stockholders] made in any certificates pursuant to the provisions hereof, to the performance by the Company [and the Selling Stockholders] of its [its] [their respective] obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx King & Xxxxxx, Professional CorporationSpalding, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements Company has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement jurisdiction in which it is chartered or organized, with full corporate power and any amendment or supplement thereto made available authority to own its properties and reviewed by such counselconduct its business as described in the Final Prospectus; and the Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingas amended;
(ii) Such counsel knows each subsidiary constituting 10% or more of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations assets of the Company which as of such date (each such subsidiary being hereinafter referred to as a "Significant Subsidiary") that is a national banking association holds a valid Certificate of Authority from the Comptroller to do business as a national banking association under the laws of the United States; [and all the issued shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued, are pending fully paid and (except, in the case of any national banking association, as provided in 12 U.S.C. (S) 55, as amended) non- assessable] and (except as otherwise set forth in the Prospectus) are owned directly or threatened against indirectly by the Company, to such counsel's knowledge free and clear of liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of matters of fact upon certificates of officers of the Company or any of its officers or directors.subsidiaries, provided that such counsel shall state that they believe you and they are justified in relying upon such certificates);
(iii) The each other Significant Subsidiary of the Company has been duly incorporated and is listed validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and nonassessable and (except as otherwise set forth in the records Prospectus) are owned directly or indirectly by the Company, to such counsel's knowledge free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the United States Patent opinion in this clause upon opinions of local counsel and Trademark Office as the holder in respect of record matters of fact upon certificates of officers of the patents listed on a schedule to Company or its subsidiaries, provided that such opinion counsel shall state that they believe that you and they are justified in relying upon such opinions and certificates);
(iv) the "Patents") and each Company's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the applications listed on a schedule Company conforms in all material respects to such opinion the description thereof contained in the Final Prospectus; the outstanding shares of Common Stock [including the Securities being sold hereunder by the Selling Stockholders] have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities [being sold hereunder by the Company] have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; [the Securities being sold by the Selling Stockholders are duly qualified for inclusion in the Nasdaq National Market]; and the Securities being sold hereunder by the Company are duly qualified for inclusion in the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; and the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(the "Applications"). To v) to the knowledge of such counsel, there are is no claims of third parties to pending or threatened action, suit or proceeding by or before any ownership interest court or lien with respect to governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Patents or Applications. Such counsel Registration Statement which is not aware of any material defect in form adequately disclosed in the preparation Final Prospectus, and there is no franchise, contract or filing other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; [and the statements included or incorporated by reference in the Final Prospectus under the heading[s] "Tax Matters", "Regulatory Matters" and " " [if the Final Prospectus contains a discussion of specific legal or regulatory matters or proceedings, add references to appropriate sections of the Applications on behalf of Final Prospectus] fairly summarize the Company. To the knowledge of such counsel, the Applications are being pursued by thematters therein described];
Appears in 1 contract
Samples: Underwriting Agreement (National Commerce Bancorporation)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Shares and the Option SecuritiesShares, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx each of Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co. ("GKHHG") anx Xxxxxx, Professional CorporationShiloh, counsel Givon, Meir Law Firm, Israeli xx-xxxxxxx for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or respective opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements Company has been duly incorporated and is validly existing as a corporation under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement State of Israel, with full corporate power and any amendment authority to own or supplement thereto made available lease, as the case may be, and reviewed to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification; no proceeding has been instituted by such counsel, at the time Registrar of Companies in Israel for the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light dissolution of the circumstances under which they were made, not misleadingCompany;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations Company's authorized equity capitalization is as set forth in the Prospectus; the share capital of the Company which conforms in all material respects to the description thereof contained in the Prospectus; the outstanding Ordinary Shares (including the Selling Shareholder Shares and the Option Shares) have been duly and validly authorized and issued and are pending or threatened against fully paid and nonassessable; the Shares being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the certificates for the Shares are in valid and sufficient form; the holders of outstanding shares of the Company are not entitled to preemptive or other rights to subscribe for the Shares; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of its officers or directors.ownership interests in the Company are outstanding;
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are is no claims of third parties to pending or threatened action, suit or proceeding by or before any ownership interest Israeli court or lien with respect to governmental agency, authority or body or any arbitrator involving the Company or any of the Patents Significant Subsidiaries or Applications. Such counsel its or their properties of a character required to be disclosed in the Registration Statement which is not aware of any material defect in form adequately disclosed in the preparation Prospectus, and there is no franchise, contract or filing other document governed by Israeli law, which is of a character required to be described in the Applications on behalf Registration Statement or Prospectus, or to be filed as an exhibit thereto, and which is not described or filed as required; and the statements included in the Prospectus under the headings "Risk Factors - Under current U.S. and Israeli law, we may not be able to enforce covenants not to compete and therefore may be unable to prevent our competitors from benefiting from the expertise of some of our former employees," "Risk Factors - The tax benefits available to us require us to meet several conditions and may be terminated or reduced in the future, which would increase our costs and taxes," "Risk Factors - Provisions of our articles of association and Israeli law may delay, prevent or make difficult an acquisition of Syneron, which could prevent a change of control and, therefore, depress the price of our shares," "Management," "Related Party Transactions," "Description of Share Capital," "Shares Eligible for Future Sale," "Israeli Taxation" and "Enforceability of Civil Liberties" insofar as such statements summarize legal matters as to Israeli law, provisions of the Company. To the knowledge 's articles of association, or agreements, documents or proceedings discussed therein governed by Israeli law, are accurate and fair summaries of such counsellegal matters, the Applications are being pursued by theagreements, documents or proceedings;
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the 13 13 manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Edwaxxx & XxxxxxAngexx, Professional CorporationXXP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements Company has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement jurisdiction in which it is chartered or organized, with full corporate power and any amendment authority to own or supplement thereto made available lease, as the case may be, and reviewed by to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingqualification;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company which conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are pending or threatened against fully paid and nonassessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq National Market; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or any of its officers or directors.
(iii) The Company is listed other rights to subscribe for the Securities; and, except as set forth in the records Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of the United States Patent and Trademark Office as the holder capital stock of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any or ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form interests in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications Company are being pursued by theoutstanding;
Appears in 1 contract
Samples: Underwriting Agreement (Airnet Communications Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives Underwriters agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested furnished to the Underwriters the opinions of the Assistant General Counsel of the Company, Xxxx, Xxxx, Xxxxxxx, Xxxxx & Xxxx, L.L.P., and caused Xxxxxx Xxxxxxx Xxxxxxxx Xxxxx & XxxxxxXxxxxxx, Professional CorporationL.L.P., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the RepresentativesDate, substantially in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateExhibit A hereto.
(c) The Representatives Underwriters shall have received from Xxxxxxx Xxxxxxx Xxxxxx, Xxxxxx & Xxxxxxxx LLPXxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration Statement, 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 reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for furnished to the Underwriters a certificate of the Company, signed on behalf of the Company by the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, Deloitte & Touche LLP shall have furnished to the Representatives their opinionUnderwriters a letter or letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Underwriters, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules included or incorporated in the Registration Statement and the Prospectus and reported on by them comply in form in all material respects with the applicable accounting requirements of the Act and the Exchange Act the respective applicable published rules and regulations thereunder;
(ii) on the basis of procedures (but not an examination in accordance with generally accepted auditing standards) consisting of the following:
(1) a reading of the minutes of the meetings of the stockholders, directors and the Audit and Compensation Committees of the Company and, where applicable, the Company's subsidiaries;
(2) performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, on the unaudited interim financial statements of the Company and its consolidated subsidiaries included in the Registration Statement and reading the unaudited interim financial data for the period from the date of the latest audited balance sheet included in the Registration Statement to the date of the latest available interim financial data; and
(3) inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company regarding its subsidiaries as to transactions and events subsequent to the December 31, 1994 audited financial statements under incorporated in the captions Prospectus, nothing came to their attention which caused them to believe that:
(1) the unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply in form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder;
(2) any material modifications should be made to the unaudited financial statements for them to be in conformity with generally accepted accounting principles; or
(3) with respect to the period subsequent to September 30, 1995, at a specified date not more than five business days prior to the date of the letter, there was any change in the capital stock, increase in long-term debt, or decrease in consolidated net current assets or stockholders' equity (deficiency) of the Company as compared with the amounts shown on the September 30, 1995 consolidated balance sheet included in the Registration Statement and the Prospectus, or for the period from October 1, 1995 to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net revenue or in total or per share amounts of net income of the Company and its consolidated subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Underwriters; and
(iii) they are unable to and do not express any opinion on the pro forma capitalization or Pro Forma Consolidated Financial Statements of the Company or on the pro forma adjustments applied to the historical amounts included in such statements (the "Risk Factors-- Our intellectual property Pro Forma Information"); however, for purposes of such letter they have:
(1) read the Pro Forma Information;
(2) made inquiries of certain officials of the Company who have responsibility for financial and proprietary rights accounting matters about the basis for their determination of the pro forma adjustments and whether the Pro Forma Information above complies in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X;
(3) compared the historical amounts in the Pro Forma Information with the Company's audited financial statements or accounting records; and
(4) proved the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the Pro Forma Information; and on the basis of such procedures, and such other inquiries and procedures as may be insufficient specified in such letter, nothing came to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which that caused them to believe that the abovePro Forma Information included in the Registration Statement does not comply as to form in all material respects with the applicable requirements of Rule 11-mentioned sections 02 of Regulation S-X and that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements; and
(iv) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniquesProspectus, including processes the information set forth under the captions "Summary Historical and substancesProforma Consolidated Financial Data," "Risk Factors", owned by or affecting "Selected Historical Consolidated Financial Data," "Capitalization," "Management's Discussion and Analysis of Results of Operations and Financial Condition" and "Business" in the business or operations Prospectus, agrees with the accounting records of the Company which are pending or threatened against and its subsidiaries. References to the Company or Prospectus in this paragraph (e) include any of its officers or directors.
(iii) The Company is listed in supplement thereto at the records date of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theletter.
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxx, Phleger & Xxxxxxxx & Xxxxxx, Professional CorporationLLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements The Company is a corporation duly incorporated and validly existing in good standing under the captions "Risk Factors-- Our intellectual property laws of the State of Delaware with corporate power and proprietary rights may be insufficient authority to protect our competitive position" own, lease and "--We may be subject operate its properties and to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto made available and reviewed by thereto), and, to such counsel's knowledge, at is duly registered and qualified to conduct its business and is in good standing in each jurisdiction where the time nature of its properties or the Registration Statement became effective and at all times subsequent thereto up conduct of its business requires such registration or qualification, except where the failure so to and register or qualify would not have a material adverse effect on the Closing Date and on any later date on which Option Stock are to be purchasedcondition (financial or other), contained any untrue statement business, properties, or results of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light operations of the circumstances under which they were made, not misleadingCompany and its subsidiaries taken as a whole;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations The authorized capital stock of the Company which are pending or threatened against conforms in all material respects as to legal matters to the Company or any of its officers or directors.description thereof incorporated by reference in the Prospectus;
(iii) All the shares of capital stock of the Company outstanding on or prior to the issuance of the Securities to be issued and sold hereunder, have been duly authorized and validly issued, and are fully paid and nonassessable;
(iv) The Company is listed Securities to be issued and sold to Underwriters hereunder have been duly authorized and, when issued and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free of any preemptive rights set forth in the records Company's Certificate of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule Incorporation or Bylaws or to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims similar rights that entitle any person to acquire any shares of third parties to any ownership interest capital stock upon the issuance thereof by the Company;
(v) Except as contemplated by or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form as disclosed in the preparation Prospectus or filing of the Applications on behalf of documents incorporated by reference into the Company. To Prospectus or the knowledge of such counsel, the Applications are being pursued by Registration Statement (the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Purchased Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Timedate hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated therein by reference) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx furnished to the Representatives the opinion of Faegre & Xxxxxx, Professional CorporationBxxxxx LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed Date, to the Representativeseffect that:
(i) the Company has been duly organized and is validly existing and in good standing under the laws of the State of Delaware; the Company has full corporate power and authority to conduct its business as described in the Final Prospectus;
(ii) the Company’s authorized capitalization is as set forth in the Final Prospectus; and the Securities conform to the description thereof contained in the Final Prospectus; all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) if the Securities are to be listed on the New York Stock Exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with the New York Stock Exchange and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(iv) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a valid and legally binding instrument, enforceable in accordance with its terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(v) this Agreement has been duly authorized, executed and delivered by the Company; each of the Delayed Delivery Contracts, if any, has been duly authorized, executed and delivered by the Company and, assuming such contract has been duly executed and delivered by the purchaser named therein, constitutes a valid and legally binding agreement of the Company enforceable in accordance with its terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); and any Delayed Delivery Contracts conform to the description thereof in the Prospectus;
(vi) the Purchased Debt Securities constituting Underwriters’ Securities have been duly executed, authenticated, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and are enforceable in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); the Purchased Debt Securities constituting Contract Securities, if any, have been duly authorized by the Company and when executed, authenticated, issued and delivered pursuant to the Indenture and Delayed Delivery Contracts, will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and will be enforceable in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); and the Purchased Debt Securities and the Indenture conform to the descriptions thereof in the Prospectus;
(vii) the Warrants constituting Underwriters’ Securities, if any, have been duly authorized, executed, countersigned, issued and delivered by the Company and constitute valid and legally binding obligations of the Company enforceable in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); the Warrants constituting Contract Securities, if any, have been duly authorized by the Company and when executed, countersigned, issued and delivered pursuant to the Delayed Delivery Contracts and the Warrant Agreement, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); the Warrant Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); and the Warrants and the Warrant Agreement conform to the descriptions thereof in the Prospectus;
(viii) the Warrant Debt Securities, if any, have been duly authorized, and when executed, authenticated, issued and delivered, upon exercise of the Warrants, pursuant to the Warrant Agreement and the Indenture, will be duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Warrant Agreement and the Indenture and will be enforceable in accordance with their terms (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles); and the Warrant Debt Securities conform to the description thereof in the Prospectus;
(ix) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required;
(x) the Registration Statement and any amendments thereto have become effective under the Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective or issue dates (other than the financial statements and other financial and statistical information included therein or incorporated therein by reference, as to which such counsel need express no opinion) complied as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement, or any amendment thereof, at the time it became effective, (except as aforesaid) contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus, as amended or supplemented, (except as aforesaid) includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in substantially light of the form attached hereto circumstances under which they were made, not misleading;
(xi) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein or in any Warrant Agreement or in any Delayed Delivery Contract, except such as EXHIBIT A. have been obtained under the Act and such as may be required under state securities laws in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and
(xii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof or of any Warrant Agreement or of any Delayed Delivery Contract will conflict with, result in a breach of, or constitute a default under the charter or by-laws of the Company or the terms of any Agreement or Instrument known to such counsel, or any statute or any order, rule or regulation known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State States of Delaware Minnesota or the Federal laws of with respect to its corporation law, Delaware, or the United States, to the extent they deem deemed proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe believed to be reliable and who are satisfactory to counsel for the Underwriters Underwriters; and (B) as to matters of factfactual matters, to the extent they deem deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
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 Guarantor contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company There shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx be furnished to the Representatives the opinion of Vinsxx & Xxxxxx, Professional CorporationXlkixx X.X.P., counsel for the Company, to have furnished to Company and the Representatives their opinionGuarantor, dated the Closing Date and addressed to the Representatives, in substantially limited to the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal federal laws of the United States, to the extent they deem proper Delaware General Corporation Law 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 laws of the Company State of Texas, and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date form and addressed substance satisfactory to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to Each of the statements Company and the Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement State of Delaware and any amendment has corporate power and authority to own and lease its properties and to conduct its business as described in the Final Prospectus as amended or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingsupplemented;
(iiiii) Such counsel knows The Indenture and the First Supplemental Indenture (the "First Supplemental Indenture") to be dated as of no material actionJanuary 13, suit1998, claim or proceeding relating to patentsamong the Company, patent rights or licensesthe Guarantor and the Trustee have been duly authorized, trademarks or trademark rightsexecuted and delivered by the Company and the Guarantor, copyrightsas applicable; the Indenture has been duly qualified under the Trust Indenture Act; and, collaborative researchassuming due authorization, licenses or royalty arrangements or agreements or trade secretsexecution and delivery thereof by each party thereto other than the Company and the Guarantor, know-how or proprietary techniquesthe Indenture and the First Supplemental Indenture constitute legal, including processes valid and substances, owned by or affecting the business or operations binding obligations of the Company and the Guarantor enforceable against the Company and the Guarantor in accordance with their terms (subject, as to enforcement of legal remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and, as to remedies of specific performance and injunctive and other forms of equitable relief, to equitable defenses or principles and to the discretion of the court before which any proceeding may therefor be brought); The Notes have been duly authorized and executed and, when authenticated in accordance with the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms (subject, as to enforcement of legal remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and, as to remedies of specific performance and injunctive and other forms of equitable relief, to equitable defenses or principles and to the discretion of the court before which any proceeding may therefor be brought). The Guarantees have been duly authorized and executed and constitute the legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with its terms (subject, as to enforcement of legal remedies, to applicable bankruptcy, reorganization, solvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and, as to remedies of specific performance and injunctive and other forms of equitable relief, to equitable defenses or principles and to the discretion of the court for which any proceeding may therefor be brought);
(iv) To the best of such counsel's knowledge and other than as set forth in the Final Prospectus, there are no legal or governmental proceedings pending or threatened against to which the Company or any of its officers Subsidiaries is a party or directors.
(iii) The of which any property of the Company or any of its Subsidiaries is listed the subject that would individually or in the records aggregate result in a material adverse change in the condition (financial or otherwise), business, prospects or results of operations of the United States Patent Company and Trademark Office its Subsidiaries considered as a whole ("Subsidiaries" means (A) any corporation in which the holder of record Company, directly or indirectly, owns more than 50% of the patents listed on a schedule to such opinion outstanding voting securities and (B) any limited partnership in which the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselCompany, there are no claims of third parties to or any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf Subsidiary of the Company. To , is the knowledge general partner and the Company, directly or indirectly, owns a majority of such counsel, the Applications are being pursued by thelimited partnership interests);
Appears in 1 contract
Samples: Underwriting Agreement (Pioneer Natural Resources Usa Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Guarantor contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy in all material respects of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of its obligations hereunder hereunder, to the due execution and delivery of the Indenture, to the absence of any event or condition which would give you the right to terminate this Agreement and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b); and at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatenedthreatened by the Commission.
(b) The At the Closing Date, the Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to you the Representatives their opinionopinion of Xxxxx X. Xxxx, General Counsel to the Company and the Guarantor, dated the Closing Date and addressed to the RepresentativesDate, substantially in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateExhibit A hereto.
(c) At the Closing Date, the Company shall have furnished to you the opinion and statement of Cravath, Swaine & Xxxxx, counsel to the Company and the Guarantor, each dated the Closing Date, substantially in the form of Exhibit B and Exhibit C hereto, respectively.
(d) The Representatives shall have received from Xxxxxxx Xxxxxxx Shearman & Xxxxxxxx LLPSterling, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d1) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for furnished to the Representatives a certificate of the Company, signed by any two officers who are an Executive or Senior Vice President of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), earnings, or business prospects of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(2) The Guarantor shall have furnished to the Representatives their opiniona certificate of the Guarantor, signed by any two officers who are an Executive or Senior Vice President of the Guarantor, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Guarantor and the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and addressed each of the Guarantor and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Guarantor's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), earnings, or business prospects of either the Company and its subsidiaries or the Guarantor and its subsidiaries, in each case considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(f) At the Closing Date, and, if specified in Schedule I, at the Execution Time, Ernst & Young LLP shall have furnished to the Representatives a letter or letters, dated respectively as of the Closing Date and the Execution Time, in form and substance satisfactory to the Representatives, confirming that they are independent auditors with respect to the Company, the Guarantor and TWE within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules of the Company, the Guarantor and TWE included or incorporated in the Registration Statement and the Final Prospectus comply in form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial statements (including the notes thereto) made available by the Company, the Guarantor and TWE and their respective consolidated subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and executive, finance and audit committees of the Company, the Guarantor and TWE and their respective consolidated subsidiaries; and inquiries of certain officials of the Company, the Guarantor and TWE who have responsibility for financial and accounting matters of the Company, the Guarantor and TWE and their respective consolidated subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements in or incorporated in the Final Prospectus, and such other inquiries and procedures as may be specified in such letter, nothing came to their attention which caused them to believe that:
(1) any of such unaudited financial statements included or incorporated in the Registration Statement and the Final Prospectus do not comply in form in all material respects with applicable accounting requirements of the Act and the Exchange Act and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the captions Exchange Act; or said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to the date of the most recent unaudited financial statements in or incorporated in the Registration Statement and the Final Prospectus, there were any increases, at a specified date not more than five business days prior to the date of the letter, in the long-term debt of the Company, the Guarantor, TWE and certain related unconsolidated subsidiaries (together with TWE, the "Risk Factors-- Our intellectual property Entertainment Group") and proprietary rights their respective consolidated subsidiaries or any decreases in stockholders' equity or the consolidated capital stock of the Company, the Guarantor, TWE and the Entertainment Group as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Final Prospectus for such entities, or for the period from the date of the most recent unaudited financial statements included or incorporated in the Registration Statement and the Final Prospectus for such entities to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in revenues, income before income taxes (or any increase in the loss before income taxes) or net income (or any increase in net loss), except in all instances for decreases or increases disclosed in the Final Prospectus;
(iii) they are unable to and do not express any opinion on the pro forma adjustments to the financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus or on the pro forma adjustments applied to the historical amounts included or incorporated by reference in the Registration Statement and the Final Prospectus; however, for purposes of such letter they have:
(1) read the pro forma adjustments to such financial statements;
(2) made inquiries of certain officials of the Company and the Guarantor who have responsibility for financial and accounting matters about the basis for their determination of the pro forma adjustments to such financial statements and whether such pro forma adjustments comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X; and
(3) proved the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts included or incorporated by reference in the Registration Statement and the Final Prospectus; and on the basis of such procedures, and such other inquiries and procedures as may be insufficient specified in such letter, nothing came to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which that caused them to believe that the above-mentioned sections of pro forma adjustments to the financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus do not comply as to form in all material respects with the applicable requirements of Rule 11-02 of Regulation S-X and that such pro forma adjustments have not been properly applied to the historical amounts in the compilation of such financial statements; and
(iv) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement agrees with the accounting records of the Company and its subsidiaries or the Guarantor and its subsidiaries, as the case may be, excluding any amendment or supplement thereto made available questions of legal interpretation.
(g) At the Closing Date and, if and reviewed by such counselto the extent specified in Schedule I, at the time Execution Time, each other firm of independent accountants who audited or reviewed financial statements included or incorporated by reference in the Registration Statement became effective and at all times subsequent thereto up shall have furnished to and on the Representatives a letter or letters, dated respectively as of the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements thereinExecution Time, in light form and substance satisfactory to the Representatives, confirming that they are independent auditors with respect to the financial statements audited or reviewed by them within the meaning of the circumstances under Act and the Exchange Act and the respective applicable published rules and regulations thereunder and to the same effect as the letter or letters of Ernst & Young LLP as described in Section 5(f)(i) and 5(f)(ii)(1) hereto.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which they were madeinformation is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not misleading;
have been (i) any decrease or increase specified in the letter or letters referred to in paragraph (f) of this Section 5 or (ii) Such counsel knows of no material actionany change, suitor any development involving a prospective change, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by in or affecting the business (including the results of operations or operations management) or properties of the Guarantor and its subsidiaries or the Company which are pending and its subsidiaries the effect of which, in any case referred to in clause (i) or threatened against (ii) above, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of any series of Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto).
(i) Subsequent to the Execution Time, (i) there shall not have been any downgrade in the credit ratings of any of the Company's or the Guarantor's debt securities by Xxxxx'x Investor Service, Inc. or Standard & Poor's Ratings Group, and (ii) neither the Company nor the Guarantor shall have been placed under special surveillance, with negative implications, by Xxxxx'x Investor Service, Inc. or Standard & Poor's Ratings Group.
(j) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k) The Company shall have accepted the Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters have been approved by the Company. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives and such cancellation shall be without liability of any party to any other party, except to the extent provided in Sections 4 and 6. Notice of such cancellation shall be given to the Company or any of its officers the Guarantor in writing or directorsby telephone or telegraph confirmed in writing.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxxx & Xxxxxx, Professional CorporationXxxxxxxx, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, substantially in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateExhibit B hereto.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx Cravath, Swaine & Xxxxxxxx LLPXxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused both Xxxxxx Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the meaning of the Act and the applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 2000, and as at March 31, 2000, in accordance with Statement on Auditing Standards No. 71 and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules included in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; their limited review, in accordance with standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the three-month period ended March 31, 2000, and as at March 31, 2000, 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 statements under comments set forth in such letter; a reading of the captions "Risk Factors-- Our intellectual property minutes of the meetings of the stockholders, directors and proprietary rights may be insufficient audit and compensation committees of the Company and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to protect our competitive position" transactions and "--We may be subject events subsequent to intellectual property rights disputes which could divert management's December 31, 1999, nothing came to their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of that:
(1) any unaudited financial statements included in the Registration Statement and any amendment or supplement thereto made available the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and reviewed with the related rules and regulations adopted by such counsel, at the time Commission with respect to registration statements on Form S-1; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingProspectus;
(ii2) Such counsel knows with respect to the period subsequent to March 31, 2000, there were any changes, at a specified date not more than five days prior to the date of no material actionthe letter, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, knowin the long-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations term debt of the Company which are pending or threatened against capital stock of the Company or decreases in the stockholders' equity or working capital of the Company as compared with the amounts shown on the March 31, 2000 balance sheet included in the Registration Statement and the Prospectus, or for the period from April 1, 2000 to such specified date there were any decreases, as compared with the corresponding period in the previous quarter in revenues, income from operations, income before income taxes or in total or per share amounts of its officers net income of the Company, except in all instances for changes or directors.decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents"Company) and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form set forth in the preparation or filing Registration Statement and the Prospectus, including the information set forth under the captions "Management's Discussion and Analysis of Financial Condition and Results of Operations," "Prospectus Summary--Summary Financial Data," "Capitalization," "Dilution," "Selected Financial Data," "Business" and "Risk Factors" in the Applications on behalf Prospectus, agrees with the accounting records of the Company, excluding any questions of legal interpretation. To References to the knowledge Prospectus in this paragraph (e) include any supplement thereto at the date of such counsel, the Applications are being pursued by theletter.
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or overtly threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationGodward LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such set forth in Exhibit B.
(c) The Company shall have requested and caused Xxxxxxx & Xxxxxx LLP, intellectual property counsel for the Company, to have furnished to the Representatives their opinion, such counsel may rely (A) as dated the Closing Date and addressed to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United StatesRepresentatives, to the extent they deem proper and specified in effect that, to the knowledge of such opinioncounsel, upon there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the opinion Company or its property of other counsel of good standing whom they believe a character required to be reliable disclosed in the Registration Statement, which is not adequately disclosed in the Prospectus, and who there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings "Risk Factors—Our ability to compete in the flavor and flavor enhancer market may decline if we do not adequately protect our proprietary technologies." and "Business—Product Discovery and Development Collaborations and—License Arrangements", insofar as such statements summarize intellectual property legal matters, documents or proceedings discussed therein, are, are satisfactory to accurate and fair summaries of such legal matters, documents or proceedings.
(d) The Company shall have requested and caused Xxxxx, Xxxxxx & XxXxxxxx, P.C., FDA regulatory counsel for the Underwriters Company, to have furnished to the Representatives their opinion, dated the Closing Date and (B) as addressed to matters of factthe Representatives, to the extent they deem propereffect that, on certificates to the knowledge of responsible officers such counsel, there is no lawsuit or regulatory proceeding, pending or threatened, brought by or before any court or governmental agency, authority or body or any arbitrator, involving the Company or its property, which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Prospectus under the headings "Business—Regulatory Process", insofar as such statements summarize applicable provisions of the Company Federal Food, Drug, and public officials. References to Cosmetic Act, as amended, and the Prospectus in this paragraph (b) include any supplements thereto at the Closing Dateregulations promulgated thereunder, are accurate and fair summaries of such Act and regulations.
(ce) The Representatives shall have received from Xxxxxxx Xxxxxxx Cleary, Gottlieb, Xxxxx & Xxxxxxxx LLPXxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the 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.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for 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 Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). The Company shall have requested and caused both Xxxxxxxx Ernst & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, Young LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representatives, in substantially the form set forth in Exhibit C.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in 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) and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives to such further information, certificates and documents as the effect that:Representatives may reasonably request.
(i) As The Securities shall have been listed and admitted and authorized for trading on the Nasdaq National Market, and reasonably satisfactory evidence of such actions shall have been provided to the statements under Representatives.
(j) At the captions "Risk Factors-- Our intellectual property and proprietary rights Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto (with such changes as may be insufficient approved by counsel to protect our competitive position" the Underwriters) from each officer and "--We director of the Company and from each shareholder listed on Schedule II hereto, each addressed to the Representatives.
(k) Immediately prior to the Closing Date, the only preferred stock of the Company consists of 8,648,158 Series A preferred shares, 2,605,326 Series B preferred shares, 1,000,000 Series C preferred shares, 869,328 Series D preferred shares and 12,703,014 Series E preferred shares.
(l) All of the preferred stock of the Company will have been converted into an aggregate 26,630,758 shares of common stock. If any of the 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 subject to intellectual property rights disputes which could divert management's attention and could canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be costly" and "Business-- Intellectual Property," nothing has come given to the attention Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of such Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel which caused them to believe that for the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counselUnderwriters, at the time the Registration Statement became effective and at all times subsequent thereto up to and 0 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention Xxxxx Xxxxx, Esq., on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsDate.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Samples: Underwriting Agreement (Senomyx Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx furnished to the Representatives the opinion of Grayxxx, Xxad & XxxxxxRitcxxx, Professional Corporation, xxecial counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements Company has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement jurisdiction in which it is chartered or organized, with full corporate power and any amendment authority to own or supplement thereto made available lease, as the case may be, and reviewed by to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingqualification;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations Company's authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company which are pending or threatened against conforms in all material respects to the Company or any of its officers or directors.
(iii) The Company is listed description thereof contained in the records Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the United States Patent Securities have been duly and Trademark Office as validly authorized, and, when issued and delivered to and paid for by the holder Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities are duly listed and admitted and authorized for trading, subject to official notice of record of the patents listed issuance, on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
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 OEI 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 OEI made in any certificates pursuant to the provisions hereof, to the performance by the Company OEI of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company mergers of Petrocon and the Companies with the subsidiaries of OEI (the "Mergers") have been completed substantially in accordance with the terms of those certain Agreements and Plans of Reorganization, each dated April 10, 1998, by and among OEI and Petrocon and the Companies and certain other parties (collectively, the "Reorganization Agreements"), without the waiver or modification of any material term or condition thereof.
(c) OEI shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinionthe opinion of Porter & Hedges, L.L.P., counsel for OEI, dated the Closing Date and addressed to the axxxxxxed xx xxx Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements each of OEI and its subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property laws of the jurisdiction in which it is chartered or organized, with full corporate power and proprietary rights authority to own or lease, as the case may be insufficient be, and to protect our competitive position" operate its properties and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto made available thereto), and reviewed by is duly qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such counselqualification, at except where the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are failure to be purchasedso qualified would not, contained any untrue statement individually or in the aggregate, result in a Material Adverse Effect, whether or not arising from transactions in the ordinary course of a material fact business, except as set forth in or omitted to state a material fact required to be stated therein or necessary to make contemplated in the statements therein, in light of the circumstances under which they were made, not misleadingProspectus;
(ii) Such counsel knows the outstanding shares of no material actioncapital stock of each of OEI and its subsidiaries have been duly and validly authorized and issued, suitare fully paid and nonassessable, claim or proceeding relating to patentsand, patent rights or licensesexcept as otherwise set forth in the Prospectus, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, all outstanding shares of capital stock of such subsidiaries are owned by OEI either directly, or affecting the business or operations indirectly through one of the Company which are pending other subsidiaries, free and clear of any perfected security interest and, to the best knowledge of such counsel after due inquiry, any other security interest, claim, lien or threatened against the Company or encumbrance of any of its officers or directors.kind;
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on Reorganization Agreements (which have been filed with the Commission as exhibits to the Registration Statement) has been duly authorized, executed and delivered by OEI and constitutes the valid and binding obligation of OEI; the Mergers as described in the Prospectus have been completed and to the best knowledge of such counsel do not constitute any violation, breach or default (or an event which with notice or lapse of time or both could become a schedule default) under any material contract, agreement or other obligation or give rise to any right of termination, amendment, acceleration or cancellation of any such opinion (contract, agreement or other obligation of OEI and its subsidiaries, or to their knowledge, Petrocon and its subsidiaries and each Company and its subsidiaries, and to the "Applications"). To the best knowledge of such counsel, there are no claims all the necessary consents or waivers have been obtained for the Mergers;
(iv) the authorized, issued and outstanding capital stock of third parties OEI conforms in all material respects to any ownership interest or lien with respect to any the description thereto set forth under the caption "Capitalization" in the Prospectus as of the Patents or Applications. Such counsel is not aware date of the Prospectus and as adjusted, as of the date hereof, giving effect to the Mergers; the capital stock of OEI conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be duly issued free of any material defect statutory, preemptive or other rights, fully paid and nonassessable; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the New York Stock Exchange; the certificates for the Securities are in form valid and sufficient form; the holders of outstanding shares of capital stock of OEI are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the preparation or filing of Prospectus, to the Applications on behalf of the Company. To the best knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in OEI are outstanding;
(v) there is no pending, or to the Applications are being pursued best knowledge of such counsel, threatened action, suit or proceeding by theor before any court or governmental agency, authority or body or any arbitrator involving OEI or its subsidiaries, Petrocon or its subsidiaries or any Company or its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement, which is not adequately disclosed in the Prospectus, and to the best knowledge of such counsel there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements in the Prospectus under the heading "Risk Factors -- Government Regulation"; "Business -- Government Regulation"; "The Company -- Summary of the Terms of the Pending Acquisitions," "Management" and "Description of Capital Stock," insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present, in all material respects, the information called for with respect to such legal matters, documents and proceedings and fairly summarize, in all material respects, the matters referred to therein;
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten ---------------------------------------------------- Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & XxxxxxKenneth Stewart, Professional CorporationAssistant General Counsel of thx Xxxxxxx, counsel for the Company, to xx have furnished to the Representatives their his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements The Company is a corporation duly incorporated, validly existing and in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement State of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingCalifornia;
(ii) Such counsel knows of no material actionThe Company has the corporate power and authority to own and operate its property, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes lease the property it operates as lessee and substances, owned by or affecting to conduct the business or operations of in which it is currently engaged, as described in the Company which are pending or threatened against the Company or any of its officers or directors.Prospectus;
(iii) The Company has all requisite corporate power and authority, has taken all requisite corporate action, and has received and is listed in compliance with all governmental, judicial and other authorizations, approvals and orders necessary to enter into and perform the Underwriting Agreement and the Supplemental Indenture and to offer, issue, sell and deliver the Securities;
(iv) the Trust Indenture has been duly authorized, executed and delivered by the Company and is a legal, valid, and binding instrument enforceable against the Company in accordance with its terms;
(v) the Supplemental Indenture has been duly authorized, executed and delivered by the Company and is a legal, valid, and binding instrument enforceable against the Company in accordance with its terms;
(vi) the Securities have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Trust Indenture, as supplemented by the Supplemental Indenture;
(vii) the Trust Indenture, as supplemented by the Supplemental Indenture, creates a legally valid first lien, to the extent that it purports to be such, on the properties and assets of the Company subject thereto, securing, among other things, the Securities, subject to the exceptions, defects, qualifications and other matters set forth or referred to in the records Prospectus and other matters that do not, in the opinion of such counsel, materially affect the United States Patent and Trademark Office as security for the holder of record of the patents listed on a schedule Securities;
(viii) to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are is no claims of third parties to pending or threatened action, suit or proceeding by or before any ownership interest court or lien with respect to governmental agency, authority or body or any arbitrator involving the Company or any of the Patents its subsidiaries or Applications. Such counsel its or their property which is not aware of any material defect in form adequately disclosed in the preparation Prospectus, except in each case for such proceedings that, if the subject of an unfavorable decision, ruling or filing finding, would not singly or in the aggregate, result in a material adverse change in the condition (financial or otherwise), prospects, earnings, business, properties or results of the Applications on behalf operations of the Company. To , and there is no franchise, contract or other document of a character required to be described in the knowledge of such counselRegistration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the Applications are being pursued statements included or incorporated by thereference in the Prospectus under the headings "Legal Matters" and "Summary-- Southern California Edison Company" or incorporated by reference into the Prospectus from the sections entitled "Regulation" and
Appears in 1 contract
Samples: Underwriting Agreement (Southern California Edison Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company and the Guarantor contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy in all material respects of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance in all material respects by the Company and the Guarantor of its their obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m. New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company and the Guarantor shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinionthe opinion of [_____________], Esq., Counsel of the Guarantor, dated the Closing Date and addressed to the RepresentativesDate, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to Each of the statements Company and the Guarantor is a corporation validly organized and presently subsisting under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement Commonwealth of Pennsylvania with all requisite corporate power and any amendment or supplement thereto made available authority to own its properties and reviewed by conduct its business as described in the Final Prospectus, except for such counsel, at power and authority the time the Registration Statement became effective and at all times subsequent thereto up to and absence of which would not have a material adverse effect on the Closing Date Guarantor or the Company, as the case may be; and on any later date on which Option Stock are to be purchasedthe Guarantor is duly registered as a bank holding company under the Bank Holding Company Act of 1956, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingas amended;
(ii) Such counsel knows of no material actionPNC Bank, suitNational Association ("PNC Bank, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting N.A.") is a national banking organization validly existing in good standing under the business or operations laws of the Company United States, with all requisite corporate power and authority to own, lease and operate its properties and conduct its business as described in the Final Prospectus, except for such power and authority the absence of which are pending or threatened against the Company or any of its officers or directors.would not have a material adverse effect on PNC Bank, N.A.;
(iii) The Company is listed all the outstanding shares of capital stock of PNC Bank, N.A. have been duly and validly authorized and issued and (except as provided in 12 U.S.C. Section 55) are fully paid and nonassessable, and, except as otherwise set forth in the records Final Prospectus, all outstanding shares of capital stock of PNC Bank, N.A. are owned by the United States Patent Guarantor either directly or through wholly owned subsidiaries free and Trademark Office as the holder clear of record of the patents listed on a schedule any perfected security interest and, to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there any other security interests, claims, liens or encumbrances;
(iv) the Guarantor's authorized equity capitalization, if set forth in the Final Prospectus, is as set forth in the Final Prospectus; the Securities conform in all material respects to the description thereof contained in the Final Prospectus; and, if the Securities are no claims to be listed on any stock exchange, authorization therefor has been given, subject to official notice of third parties to any ownership interest issuance and evidence of satisfactory distribution, or lien the Company and the Guarantor have filed a preliminary listing application and all required supporting documents with respect to any the Securities with such stock exchange and nothing has caused such counsel to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(v) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, receivership, readjustment of debt, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or general equitable principles (whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Patents Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, in the case of the Underwriters' Securities, or Applications. Such counsel is not aware by the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counselContract Securities, the Applications are being pursued by thewill constitute legal, valid and
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM p.m., New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m., New York City time on such date or (ii) 9:30 AM a.m. on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM p.m., New York City time time, on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & XxxxxxBaker Botts L.L.P., Professional Corporation, outside counsel for the Company, to have furnished to fuxxxxxex xx the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially to the form attached hereto as EXHIBIT A. In rendering such effect set forth on Exhibit A.
(c) The Company shall have requested and caused Higgs & Johnson, Bahamian counsel for the Company, to have furnxxxxx to xxx Xxpresentatives their opinion, such counsel may rely (A) as dated the Closing Date and addressed to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United StatesRepresentatives, to the extent they deem proper effect set forth on Exhibit B.
(d) The Company shall have requested and specified in such opinioncaused Brons & Salas, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to Argentine counsel for the Underwriters Company, to have furnished to xxx Representatives its opinion, dated the Closing Date and (B) as addressed to matters of factthe Representatives, to the extent they deem propereffect set forth on Exhibit C.
(e) The Company shall have requested and caused Jean Paul Henderson, on certificates Director Juridique of responsible officers of the Company and public officials. References Pride Forasol s.a.s., xx xxxx xxxxxxxxx to the Prospectus in this paragraph (b) include any supplements thereto at Representatives his opinion, dated the Closing Date.Date and addressed to the Representatives, to the effect set forth on Exhibit D. ---------
(cf) The Company shall have requested and caused W. Gregory Looser, Vice President, General Counsel and Secretary fxx xxx Xxxxxxx, to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, to the effect set forth on Exhibit E.
(g) The Representatives shall have received from Xxxxxxx Xxxxxxx Vinson & Xxxxxxxx LLPElkins L.L.P., counsel for the Underwriters, such opinion or opinionsopinxxx xx opxxxxxx, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(dh) The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the Chief Executive Officer or the President and (y) the Chief Financial Officer or the Chief Accounting Officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except with respect to representations and warranties that are qualified by materiality, which shall be true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened by the Commission.
(i) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, PricewaterhouseCoopers LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives to Representatives, confirming that they are an independent registered public accounting firm within the effect meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder, and stating in effect, except as provided in Schedule I hereto, that:
(i) As in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the three-month period ended March 31, 2005 and as at March 31, 2005 incorporated by reference in the Registration Statement and the Final Prospectus; 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 statements under comments set forth in such letter; a reading of the captions "Risk Factors-- Our intellectual property minutes of the meetings of the stockholders, directors and proprietary rights may be insufficient audit committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to protect our competitive position" transactions and "--We may be subject events subsequent to intellectual property rights disputes which could divert management's December 31, 2004, nothing came to their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and any amendment the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations of the Commission with respect to financial statements included or supplement thereto made available incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and reviewed said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by such counsel, at the time reference in the Registration Statement became effective and the Final Prospectus; and
(2) with respect to the period subsequent to March 31, 2005, there were any changes, at all times subsequent thereto up a specified date not more than five days prior to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements thereinletter, in light of the circumstances under which they were madecapital stock, not misleading;
increase in long-term debt or decrease in the consolidated net current assets (iiworking capital) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations stockholders' equity of the Company which are pending and its subsidiaries as compared with the amounts shown on the March 31, 2005 consolidated balance sheet included or threatened against incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from April 1, 2005 to such specified date there were any decreases, as compared with the corresponding period in the preceding year in total consolidated net sales, income from operations or net income of the Company and its subsidiaries, except in all instances for changes or any of its officers or directors.decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent Company and Trademark Office as its subsidiaries) set forth in the holder of record Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated by reference in Items 1, 2, 6, 7, 7A and 8 of the patents listed Company's Annual Report on a schedule to such opinion (Form 10-K, incorporated by reference in the Registration Statement and the Final Prospectus, and the information included in the "Patents"Management's Discussion and Analysis of Financial Condition and Results of Operations" included in the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2005, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (i) include any supplement thereto at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and each 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 (i) of this Section 6 (other than any change or decrease specified in such letter or letters specified at the Execution Time) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the applications listed on Company and its subsidiaries, taken as a schedule whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to such opinion in clause (i) or (ii) above, is, in the "Applications"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) and the Final Prospectus (exclusive of any supplement thereto). To .
(k) Subsequent to the knowledge of such counselExecution Time, there are no claims shall not have been any decrease in the rating of third parties to any ownership interest or lien with respect to any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or Applications. Such counsel is not aware any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been approved for listing, subject to notice of issuance, on the New York Stock Exchange.
(m) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material defect 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 in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf 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 Baker Botts L.L.P., counsel for the Company. To , at 910 Louisiana, Houstxx, XX 00002 on the knowledge of such counsel, the Applications are being pursued by theClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & X. Xxxxxx, Professional Corporation, counsel for General Counsel of the Company, to have furnished furnish to the Representatives their his opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
i. each of the Company's Subsidiaries has been duly incorporated and is validly existing as a corporation in substantially good standing under the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United Statesjurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the extent they deem proper case may be, and specified to operate, its properties and conduct its business as described in such opinion, upon the opinion Final Prospectus;
ii. all the outstanding shares 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 capital stock of the Company and public officials. References each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances;
iii. the Company's authorized capitalization is as set forth in the Final Prospectus in this paragraph (b) include any supplements thereto at under the Closing Date.heading "Capitalization";
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed iv. to the Representativesknowledge of such counsel, with respect to without conducting a docket search, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the issuance Company or any of its subsidiaries or its or their property that is not adequately disclosed in the Final Prospectus, except in each case for such proceedings that, if the subject of an unfavorable decision, ruling or finding would not, singly or in the aggregate, result in a material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole; and the statements in the Final Prospectus under the heading "Business--Legal Proceedings" fairly summarize the matters therein described;
v. neither the execution and delivery of the Indenture, this Agreement, the issue and sale of the Securities, nor the Registration Statementconsummation of any other of the transactions herein or therein contemplated, nor the Prospectus (together with fulfillment of the terms hereof or thereof, will conflict with, result in a breach or violation of, or imposition of any supplement thereto) and other related matters as the Representatives may reasonably requirelien, and charge or encumbrance upon, any property or asset of the Company shall have furnished or its subsidiaries pursuant 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the abovecharter or by-mentioned sections laws of the Registration Statement and any amendment Company's subsidiaries, or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows the terms of no material actionany indenture, suitcontract, claim lease, mortgage, deed of trust, note agreement, loan agreement or proceeding relating other agreement, obligation, condition, covenant or instrument to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers subsidiaries is a party or directors.bound or to which its respective property is subject which is known to such counsel;
(iii) The Company is listed vi. the statements in the records Final Prospectus under the captions "Risk Factors - The Heavy Regulation of the United States Patent Telecommunications Industry May Limit the Development of Our Networks and Trademark Office as Affect Our Competitive Position" and "Business-Regulation" to the holder of record extent that they discuss U.S. federal, state, and local telecommunications statutes and regulations or legal or governmental proceedings of the patents listed on a schedule FCC and state and local governments with respect to such opinion (telecommunications regulatory matters, fairly summarize the "Patents") matters referred to therein in all material respects;
vii. neither the execution and each delivery of this Agreement by the applications listed on a schedule Company nor the performance by the Company of its obligations under this Agreement will violate the Communications Act or the State Telecommunications Laws; and
viii. to such opinion (the "Applications"). To the knowledge of such counsel, (A) the Company and its subsidiaries have in effect all the U.S. federal and state telecommunications regulatory licenses, permits, authorizations, consents, and approvals (hereinafter, "Licenses") required to conduct their respective businesses as presently conducted; (B) all such Licenses have been validly issued and are in full force and effect; (C) no determination has been made by the FCC or any State Regulatory Agency that the Company or any subsidiaries is in violation of any such Licenses, and no proceeding is pending before any such agency in which any such violation has been alleged; and (D) no proceedings by the FCC or any State Regulatory Agency to revoke or restrict any such Licenses are pending or threatened. "Validly issued" as used in this paragraph means that the Licenses have been issued through the means of regular agency procedures applied in conformity with the applicable governing statute and prior agency practice and there are is no claims of third parties legal basis under the applicable governing statute to conclude that the Company or any ownership interest subsidiary cannot hold one or lien with respect to any more of the Patents Licenses as a matter of law. "Full force and effect" as used in this paragraph means (i) the orders issuing the Licenses have become effective under the applicable governing statute, (ii) the Licenses contain no conditions that would have a material adverse effect on the Company's or Applications. Such counsel is not aware of any material defect in form subsidiary's operations except for such conditions imposed generally by the agency, (iii) all conditions precedent set forth in the preparation or filing of Licenses have been satisfied where the Applications failure to satisfy such conditions would have a material adverse effect on behalf of the Company. To the knowledge 's or any subsidiary's ability to conduct their respective businesses as they are presently conducted, and (iv) no stay of such counsel, the Applications are being pursued by theeffectiveness has been issued.
Appears in 1 contract
Samples: Debt Underwriting Agreement (Metromedia Fiber Network 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Hxxxx & Xxxxxx, Professional CorporationHxxxxxx L.L.P., counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and any settlement date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified effect set forth in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateAnnex B hereto.
(c) The Company shall have requested and caused Hatasawa, Wakai & Yasunaga, counsel for Advanced Energy Japan, K.K., to have furnished to the Representatives their opinion, dated the Closing Date and any settlement date and addressed to the Representatives, to the effect set forth in Annex C hereto.
(d) The Company shall have requested and caused J. X. Xxxxxx, internal counsel for the Company, to have furnished to the Representatives his opinion, dated the Closing Date and any settlement date and addressed to the Representatives, to the effect set forth in Annex D hereto.
(e) The Representatives shall have received from Xxxxxxx Xxxxxxx Dxxxx Xxxx & Xxxxxxxx LLPWxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the 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.
(df) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date and any settlement date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus 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 and any settlement date with the same effect as if made on the Closing Date and any settlement date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date and any settlement date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused both Gxxxx Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, LLP to have furnished to the Representatives their opinionRepresentatives, dated at the Execution Time and at the Closing Date and addressed any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the Representatives Representatives, to the effect that:set forth in Annex E hereto.
(h) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, in form and substance satisfactory to the Representatives, to the effect set forth in Annex F hereto.
(i) As Subsequent to the statements under Execution Time or, if earlier, the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes dates as of which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of information is given in the Registration Statement and (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company 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 Final Prospectus (exclusive of any supplement thereto made available 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 reviewed adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by such counsel, at the time the Registration Statement became effective (exclusive of any amendment thereof) and at all times subsequent thereto up the Final Prospectus (exclusive of any supplement thereto).
(j) Prior to and on the Closing Date and on any later date on which Option Stock are settlement date, the Company shall have furnished to be purchasedthe Representatives such further information, contained certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the Execution Time, there shall not have been any untrue statement decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a material fact possible change in any such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been listed and admitted and authorized for trading on the Nasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Representatives.
(m) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or omitted if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in reasonably satisfactory in form and substance to state a material fact 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 stated therein or necessary to make delivered by this Section 6 shall be delivered at the statements thereinoffice of Dxxxx Xxxx & Wxxxxxxx, in light of counsel for the circumstances under which they were madeUnderwriters, not misleading;
(ii) Such counsel knows of no material actionat 1000 Xx Xxxxxx Xxxx, suitXxxxx Xxxx, claim or proceeding relating to patentsXX 00000, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting on the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsClosing Date.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Samples: Underwriting Agreement (Advanced Energy Industries Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Underwriters' Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and any settlement date pursuant to Section 3 hereofas of the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will shall have become effective not later than (i) 6:00 PM P.M. New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM P.M. New York City time on such date or (ii) 9:30 AM 12:00 Noon on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM P.M. New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be Prospectus shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinionRepresentatives:
(i) the opinion of the General Counsel, an Assistant General Counsel, or other counsel of the Company, dated the Closing Date and addressed Date, to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely effect that:
(A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction within the United States which requires such qualifications wherein it owns or leases material properties or conducts material business;
(B) the Securities conform in all material respects to the description thereof contained in the Prospectus;
(C) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting creditors' rights generally from time to time in effect, and subject, as to matters enforceability, to general principle of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, in the case of the Underwriters' Securities, or by the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of any Contract Securities, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and other similar laws affecting creditors' rights generally from time to time in effect);
(D) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the application Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required;
(E) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued, no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(F) this Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(G) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any relevant United States governmental authority or regulatory body is required for the consummation of the transactions contemplated herein or in any Delayed Delivery Contracts, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction other than in connection with the State of Delaware or the Federal laws purchase and distribution of the United States, to the extent they deem proper Securities and such other approvals (specified in such opinion) as have been obtained;
(H) such counsel has no reason to believe that (1) the Registration Statement and the Prospectus (except the financial statements and the notes thereto and other information of an accounting or financial nature included therein, upon and the opinion Statement of other Eligibility (Form T-1) included as an exhibit to the Registration Statement, as to which such counsel need express no view) were not appropriately responsive in all material respects to requirements of good standing whom they believe the Act and the applicable rules and regulations of the Commission thereunder and (2) the Registration Statement or any amendment thereof at the time it became effective contained any untrue statement of a material fact or omitted to state any material fact required to be reliable and who are satisfactory stated therein or necessary to counsel make the statements therein not misleading or that the Prospectus, as amended or supplemented, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case except for the Underwriters financial statements and (B) the notes thereto and other information of an accounting or financial nature included therein, as to matters which such counsel need express no view); and
(I) none of factthe issue and sale of the Securities, to the extent they deem properconsummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof or of any Delayed Delivery Contracts will conflict with, on certificates of responsible officers result in a breach of, or constitute a default under, the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and public officials. References to which the Company is a party or bound, or any decree or regulation known to such counsel to be applicable to the Prospectus in this paragraph (b) include Company of any supplements thereto at court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Closing DateCompany.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP___________________, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for furnished to the Representatives a certificate of the Company, signed by the principal financial or accounting officer (or Vice President and Treasurer) of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for 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 Prospectus, there has been no material adverse change in the condition (financial or other), 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 Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Representatives their opiniona letter or letters (which may refer to a letter previously delivered to one or more of the Representatives), dated as of the Closing Date Date, in form and addressed substance satisfactory to the Representatives Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) As in their opinion the audited financial statements and schedules thereto included or incorporated in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations thereunder with respect to financial statements and financial statement schedules included or incorporated in annual reports on Form 10-K under the Exchange Act;
(ii) on the basis of a reading of the unaudited financial statements included or incorporated in the Registration Statement and the Prospectus and of the latest unaudited financial statements made available by the Company and its subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the statements under comments set forth in such letter; a reading of the captions "Risk Factors-- Our intellectual property minutes of the meetings of the stockholders, directors and proprietary rights may be insufficient to protect our competitive position" executive committees of the Company and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come the Subsidiaries since the date of the latest audited balance sheet, through a specified date not more than five business days prior to the date of the letter; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, nothing came to their attention of such counsel which caused them to believe that the above-mentioned sections of that:
(1) any unaudited financial statements included or incorporated in the Registration Statement and any amendment the Prospectus do not comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or supplement thereto made available incorporated in quarterly reports on Form 10-Q under the Exchange Act; and reviewed by such counsel, at said unaudited financial statements are not stated on a basis substantially consistent with that of the time audited financial statements included or incorporated in the Registration Statement became effective and the Prospectus; or
(2) with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Prospectus, there were, at all times subsequent thereto up a specified date not more than five business days prior to the date of the letter, any increases in long-term debt of the Company and its subsidiaries or decreases in the capital stock of the Company or decreases in the stockholders' equity of the Company and its subsidiaries as compared with the amounts shown on the Closing Date most recent consolidated balance sheet included or incorporated in the Registration Statement and on any later date on the Prospectus, except in all instances for increases or decreases set forth in such letter, in which Option Stock are case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(iii) they have performed certain other procedures as a result of which they determined that the information described in a schedule to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light delivered on behalf of the circumstances under Underwriters of an accounting, financial or statistical nature (which they were madeis limited to accounting, financial or statistical information derived from the general ledger of the Company) set forth in the Registration Statement, as amended, the Prospectus, as amended or supplemented, and in Exhibit __ to the Registration Statement (including selected accounting, financial or statistical information included or incorporated in the Company's Annual Report on Form 10-K incorporated in the Prospectus or any of the Company's Quarterly Reports on Form l0-Q incorporated therein), agrees with the general ledger of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplements thereto at the date of the letter.
(f) Subsequent to the respective dates of which information is given in the Registration Statement and the Prospectus, there shall not misleading;
have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 or (ii) Such counsel knows of no material actionany change, suitor any development involving a prospective change, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by in or affecting the business or operations properties of the Company which are pending and its subsidiaries considered as one enterprise the effect of which, in any case referred to in clause (i) or threatened against (ii) above, is, in the Company judgment of the Representatives, so material and adverse as to make it impractical or any inadvisable to proceed with the public offering or the delivery of its officers or directorsthe Securities as contemplated by the Registration Statement and the Prospectus.
(iiig) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(h) The Company is listed shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters have been approved by the Company.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the records ratings of any of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion Securities by Moody's Investor's Service, Inc. (the "PatentsMoody's") or Standard & Poor's Corporation ("S&P") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to neither Moody's nor S&P shall have publicly announced that it has placed any of the Patents Securities on a credit watch with negative implications. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or Applications. Such counsel is if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not aware of any be in all material defect respects reasonably satisfactory in form in and substance to the preparation or filing Representatives and their counsel, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be cancelled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counsel, cancellation shall be given to the Applications are being pursued Company in writing or by thetelephone or telegraph confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Minnesota Mining & Manufacturing Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to (i) the 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 (ii) the performance by the Company of its obligations hereunder, (iii) the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereof and to (iv) the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, The Prospectus and any such supplement, will be supplements thereto have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(q) hereto, any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxxx & XxxxxxLLP, Professional Corporation, special counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed any settlement date pursuant to the RepresentativesSection 3 hereof, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of With your consent, based solely on certificates from public officials, such counsel which caused them to believe confirms that the above-mentioned sections of Company is qualified to do business in the Registration Statement following states: Arizona, California, Colorado, Florida, Georgia, Massachusetts and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingNew Jersey;
(ii) Such With your consent, based solely on certificates from public officials, such counsel knows of no material actionconfirms that the Operating Partnership is qualified to do business in the following states: Arizona, suitCalifornia, claim or proceeding relating to patentsColorado, patent rights or licensesFlorida, trademarks or trademark rightsGeorgia, copyrightsIllinois, collaborative researchMassachusetts, licenses or royalty arrangements or agreements or trade secretsNew Jersey, know-how or proprietary techniques, including processes Texas and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.Virginia;
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed With your consent, based solely on a schedule to certificates from public officials, such opinion (the "Patents") and counsel confirms that each of the applications entities listed on Schedule V (other than the Operating Partnership) is (i) validly existing as a schedule limited liability company under the Limited Liability Company Act of the State of Delaware, (ii) in good standing under the laws of the State of Delaware and (iii) qualified to do business in the states listed opposite its name under the heading “Foreign Qualifications.”
(iv) The Registration Statement has become effective under the Act. With your consent, based solely on a telephonic confirmation by a member of the Staff of the Commission on the Closing Date, such opinion counsel confirms that no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings therefor have been initiated by the Commission. The Prospectus has been filed in accordance with Rule 424(b) under the Act;
(v) The Registration Statement, at March 29, 2012, including the "Applications"). To information deemed to be a part thereof pursuant to Rule 430B under the knowledge Act, and the Prospectus, as of the date of the Prospectus Supplement and as of the date hereof, each appeared on its face to be appropriately responsive in all material respects to the applicable form requirements for registration statements on Form S-3 under the Act and the rules and regulations of the Commission thereunder; it being understood, however, that such counsel, there are counsel need express no claims of third parties to any ownership interest or lien view with respect to any Form T-1 under the Trust Indenture Act of 1939, as amended, Regulation S-T or the Patents financial statements, schedules or Applications. Such counsel is not aware of any material defect other financial data included in, incorporated by reference in form in or omitted from the preparation Registration Statement or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Samples: Underwriting Agreement (Digital Realty 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, PIES shall be subject to the accuracy of the representations and warranties on the part of the Company MediaOne Group and AirTouch 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 MediaOne Group and AirTouch made in any certificates pursuant to the provisions hereof, to the performance by the Company MediaOne Group and AirTouch of its their respective obligations hereunder and to the following additional conditions:
(a) If the MediaOne Group Registration Statement or the AirTouch Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the such MediaOne Group or AirTouch Registration Statement will become effective not later than (i) 6:00 PM PM, New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM PM, New York City time time, on such date or (ii) 9:30 AM 12:00 Noon, New York City time, on the Business Day business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM PM, New York City time time, on such date; if filing of the Final MediaOne Group Prospectus or the Final AirTouch Prospectus, or any supplement supplements thereto, is required pursuant to Rule 424(b), the such Final MediaOne Group Prospectus or Final AirTouch Prospectus, and any such supplementsupplements, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the MediaOne Group Registration Statement or the AirTouch Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company MediaOne Group shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Company, to have furnished to the Representatives their opinionthe opinion of Xxxxxxx X. Xxxxx, Esq., Corporate Counsel of MediaOne Group, dated the Closing Date and addressed Date, to the Representativeseffect that:
(i) each of MediaOne Group and the MediaOne Group Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is organized, with full corporate power and authority to own its properties and conduct its business as described in substantially the form attached hereto Final MediaOne Group Prospectus, and is duly qualified to do business as EXHIBIT A. a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where failure to so qualify would not have a material adverse effect on MediaOne Group and the MediaOne Group Subsidiary, taken as a whole;
(ii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the distribution of the PIES and the Shares by MediaOne Group and such other approvals (specified in such opinion) as have been obtained; and
(iii) to the best knowledge of such counsel, MediaOne Group has good and marketable title to the Shares and owns such Shares free and clear of all liens, encumbrances, equities and claims. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware Colorado or the Federal laws of the United States, to the extent they deem such counsel deems proper and specified in such opinion, the State of Delaware, upon the opinion of other counsel of good standing whom they believe such counsel believes to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem such counsel deems proper, on certificates of responsible officers of the Company MediaOne Group and public officials. References to the Final MediaOne Group Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives MediaOne Group shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinionthe opinion of Weil, Gotshal & Xxxxxx, counsel for MediaOne Group, dated as of the Closing Date and addressed to the Representatives Date, to the effect that:
(i) As to the statements MediaOne Group has been duly incorporated and is validly existing as a corporation in good standing under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections laws of the Registration Statement State of Delaware, with full corporate power and any amendment or supplement thereto made available authority to own its properties and reviewed by such counsel, at conduct its business as described in the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingFinal MediaOne Group Prospectus;
(ii) Such counsel knows the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and (assuming the due authorization, execution and delivery thereof by the Trustee) constitutes a legal, valid and binding instrument enforceable against MediaOne Group in accordance with its terms (subject, as to enforcement of no material actionremedies, suitto applicable bankruptcy, claim reorganization, insolvency, moratorium or proceeding relating other laws affecting creditors' rights generally from time to patentstime in effect); and the PIES have been duly authorized and, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes when executed and substances, owned by or affecting authenticated in accordance with the business or operations provisions of the Company which are pending or threatened against Indenture and delivered to and paid for by the Company or any Underwriters pursuant to this Agreement will constitute legal, valid and binding obligations of its officers or directors.MediaOne Group entitled to the benefits of the Indenture;
(iii) The Company is listed the MediaOne Group Registration Statement was declared effective under the Act; any required filing of the Basic MediaOne Group Prospectus, any Preliminary Final MediaOne Group Prospectus and the Final MediaOne Group Prospectus, and of any supplements thereto, pursuant to Rule 424(b) has been made in the records of manner and within the United States Patent and Trademark Office as time period required by Rule 424(b); to the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the best knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any stop order suspending the effectiveness of the Patents MediaOne Group Registration Statement has been issued, no proceedings for that purpose have been instituted or Applicationsthreatened;
(iv) this Agreement has been duly authorized, executed and delivered by MediaOne Group; and
(v) The statements in the Basic MediaOne Group Prospectus under the heading "Description of Debt Securities" and the statements in the Final MediaOne Group Prospectus under the heading "Description of the PIES", insofar as such statements constitute a summary of certain provisions of the Indenture and the PIES, are accurate in all material respects. Such In addition, such counsel shall state that it has participated in conferences with officers and other representatives of MediaOne Group, representatives of the independent public accountants for MediaOne Group and representatives of the Underwriters and counsel for the Underwriters, at which conferences the contents of the MediaOne Group Registration Statement and the Final MediaOne Group Prospectus and related matters were discussed; such counsel has not independently verified and is not aware passing upon and assumes no responsibility for the accuracy, completeness or fairness of any material defect in form the statements contained in the preparation or filing MediaOne Group Registration Statement and the Final MediaOne Group Prospectus, except for the statements in the Basic MediaOne Group Prospectus under the heading "Description of Debt Securities" and the statements in the Final MediaOne Group Prospectus under the heading "Description of the Applications on behalf PIES"; however, based upon such counsel's participation in the aforesaid conferences, no facts have come to its attention which lead it to believe that the MediaOne Group Registration Statement, as of the Company. To MediaOne Group Effective Date, and the knowledge of such counselFinal MediaOne Group Prospectus (other than the financial statements and other financial, the Applications are being pursued by theaccounting and operating (as described
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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationLLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) Based solely on certificates from public officials, such counsel confirms that the Company is qualified to do business in substantially the form attached hereto States of California, Maryland, Colorado, Florida and Georgia;
(ii) Based solely on certificates from public officials, such counsel confirms that the Operating Partnership is qualified to do business in the States of California, Maryland, Colorado, Florida and Georgia;
(iii) Each Material Subsidiary (as EXHIBIT A. defined therein) is a limited liability company or limited partnership, as the case may be, under the Corporations Code of the State of California, the Limited Liability Company Act of the State of Delaware or the Revised Uniform Limited Partnership Act of the State of Delaware, with the limited liability company or limited partnership power and authority to own its properties and to conduct its business as described in the Registration Statement and the Prospectus;
(iv) Based on certificates from public officials, such counsel confirms that each Material Subsidiary is validly existing and in good standing under the laws of the State of California or the State of Delaware, as the case may be, and is qualified to do business in the States listed on Schedule C thereto;
(v) To the best of such counsel’s knowledge, there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed;
(vi) Such counsel is not, as of such date, representing the Company or its subsidiaries in any pending legal or governmental proceedings or investigations of a character required to be described in the Registration Statement or Prospectus that are not so described;
(vii) The statements in the Prospectus under the captions “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Material Provisions of Consolidated Indebtedness to be Outstanding After this Offering,” “Management—Employment Agreements,” “—Executive Chairman Agreement,” “Certain Relationships and Related Transactions—GI Partners Contribution Agreement,” “— eBay Data Center Purchase Agreement,” “—000 Xxxx Xxxxxx and 0000 Xxxxx Xxxx Xxxxx Contribution Agreement,” “—Right of First Offer Agreements,” “—Non-Competition Agreement with Global Innovation Partners, LLC,” and “ERISA Considerations,” insofar as they purport to describe or summarize certain provisions of the agreements, statutes or regulations referred to therein, are accurate descriptions or summaries in all material respects;
(viii) The Registration Statement has become effective under the Act. With the consent of the Representatives, based solely on a telephonic confirmation by a member of the Staff of the Commission on , 2005, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings therefor have been initiated by the Commission. Any required filing of the Prospectus pursuant to Rule 424 under the Act has been made in accordance with Rule 424 under the Act;
(ix) The Registration Statement, as of the date it was declared effective, and the Prospectus, as of its date and as of the date hereof, appeared on their face to be appropriately responsive in all material respects to the requirements for registration statements on Form S-11 under the Act and the rules and regulations of the Commission thereunder; it being understood, however, that such counsel need express no opinion with respect to Regulation S-T or the financial statements, schedules, or other financial data, included in or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, such counsel may assume that the statements made in the Registration Statement and the Prospectus are correct and complete;
(x) With the consent of the Representatives based solely on a certificate of an officer of the Company as to factual matters, each of the Company and the Operating Partnership is not, and immediately after giving effect to the sale of the Securities in accordance with this Agreement and the application of the proceeds as described in the Prospectus under the caption “Use of Proceeds,” will not be required to be registered as, an “investment company” within the meaning of the Investment Company Act of 1940, as amended;
(xi) The execution and delivery of this Agreement by the Company and the Operating Partnership, the issuance and sale of the Securities by the Company to the Representatives and the other Underwriters pursuant to this Agreement, on the date hereof do not:
(A) violate the provisions of any Subsidiary Operating Agreement; or
(B) result in the breach of or a default under any of the Material Agreements (as defined therein); or
(C) violate any federal or California statute, rule or regulation applicable to the Company, the Operating Partnership or the Material Subsidiaries; or
(D) require any consents, approvals, or authorizations to be obtained by the Company, the Operating Partnership or any Material Subsidiary from, or any registrations, declarations or filings to be made by the Company, the Operating Partnership or any Material Subsidiary with, any governmental authority under any federal or California statute, rule or regulation applicable to the Company, the Operating Partnership or any Material Subsidiary, that have not been obtained or made;
(xiii) With the consent of the Representatives based solely on a certificate of an officer of the Company as to factual matters and a review of the Material Agreements, neither the Company nor the Operating Partnership nor any Material Subsidiary is a party to any agreement that would require the inclusion in the Registration Statement of shares or other securities owned by any person or entity other than the Company; and
(xiv) With the consent of the Representatives based solely on a written advice from the New York Stock Exchange, the Securities to be issued by the Company and sold pursuant to this Agreement have been listed, subject to official notice of issuance, on the New York Stock Exchange. In rendering such opinion, such counsel may rely (A) assume the accuracy, as to matters involving the application of laws of any jurisdiction other than the State of Delaware California or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon of the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by theand
Appears in 1 contract
Samples: Underwriting Agreement (Digital Realty 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, Time and the Closing Date and any settlement date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationPerkins Coie LLP, counsel for the Company, to have furnished to the Representatives xxx Xxxerwriters their opinion, dated the Closing Date and addressed to the Representatives, Underwriters substantially in substantially the form attached hereto as EXHIBIT A. of Annex A hereto. In rendering such opiniontheir opinion as aforesaid, such counsel may rely (A) upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Company as to matters involving the application of laws of any jurisdiction other than the United States or the State of Delaware or the Federal laws Washington, provided that (1) each such local counsel is acceptable to you, (2) such reliance is expressly authorized by each opinion so relied upon and a copy of the United Stateseach such opinion is delivered to you and is, in forma and substance satisfactory to the extent they deem proper them and specified their counsel, and (3) counsel shall state in such opinion, upon the their opinion of other counsel of good standing whom that they believe to be reliable that they and who are satisfactory to counsel for the Underwriters are justified in relying thereon; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives Underwriters shall have received from Xxxxxxx Xxxxxxx King & Xxxxxxxx Spalding LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesUnderwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for furnished to the Underwriters a certificate of the Company, to have furnished to signed by the Representatives their opinionChief Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) As the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the statements under Closing Date;
(ii) no stop order suspending the captions "Risk Factors-- Our intellectual property effectiveness of the Registration Statement has been issued and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Underwriters), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and stating in effect, except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and audit and compensation committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2002, nothing came to their attention of such counsel which caused them to believe that the above-mentioned sections of that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and any amendment the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or supplement thereto made available incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and reviewed said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by such counsel, at the time reference in the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingFinal Prospectus;
(ii2) Such counsel knows with respect to the period subsequent to December 31, 2002, there were any changes, at a specified date not more than three Business Days prior to the date of no material actionthe letter, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting in the business or operations consolidated total debt (defined as lines of credit plus notes payable) of the Company which are pending and its subsidiaries or threatened against capital stock of the Company or decreases in consolidated assets or the shareholders' equity of the Company as compared with the amounts shown on the December 31, 2002 consolidated balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from January 1, 2003, to such specified date there were any decreases, as compared with the same period in the prior year, in consolidated revenue or income before income taxes or in total or per share amounts of net income of the Company and its officers subsidiaries, except in all instances for changes or directors.decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included or incorporated by reference in the Registration Statement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent Company and Trademark Office its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions "Capitalization" and "Selected Financial Information" in the Final Prospectus and in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company 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 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) and the Final Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the holder of record of Representatives may reasonably request.
(h) Subsequent to the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselExecution Time, there are no claims shall not have been any decrease in the rating of third parties to any ownership interest or lien with respect to any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or Applications. Such counsel is not aware 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. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material defect 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 in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives . To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of King & Spalding LLP, counsel for the Applications are being pursued by theUnderwriters, at 191 Peachtree Street, Atlanta, Georgia 30303, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Shurgard Storage Centers Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, Time and the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx furnished to the Representatives the opinion of Akin Gump Xxxxxxx Xxxxxxxx Xxxxx & Xxxxxx, Professional CorporationXxxx LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed Date, to the Representativeseffect that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Texas, with corporate power and authority to own or lease its properties and conduct its business as described in the Final Prospectus; and the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable; and, to the best of such counsel's knowledge, except (A) as reflected in the Company's financial statements, (B) as described in the Registration Statement or (C) as set forth on Schedule III hereto or as disclosed in such counsel's opinion, (x) the outstanding shares of capital stock of each of the Subsidiaries are owned by the Company or its subsidiary free and clear of all liens, encumbrances and security interests and (y) no options, warrants or other rights to purchase, agreements or other obligations to issue, or other rights to convert any obligations into any shares of capital stock or of ownership interests in the Subsidiaries are outstanding.
(ii) The Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(iii) Except as described in the Final Prospectus, to the knowledge of such counsel, no holder of any securities of the Company or any other person has the right, contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Securities or the right to have any Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of any shares of Common Stock or other securities of the Company.
(iv) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, in substantially respect to both the Indenture and the Securities, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent conveyance or transfer, moratorium or other laws affecting creditors' rights generally from time to time in effect);
(v) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened under the Act.
(vi) The Registration Statement, the Final Prospectus and each amendment or supplement thereto and documents incorporated by reference therein (each as amended to date) comply as to form attached hereto in all material respects with the requirements of the Act or the Exchange Act, as EXHIBIT A. applicable and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the statistical information contained in the Final Prospectus or financial statements, schedules and other financial information incorporated by reference therein).
(vii) The statements under the captions "Business" and "Description of the Notes" in the Final Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and accurately present the information called for with respect to such documents and matters in all material respects.
(viii) Except as set forth on Schedule III, to such counsel's knowledge, there are no contracts or documents required to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Final Prospectus (excluding any document incorporated therein by reference) which are not so filed or described as required, and such contracts and documents as are summarized in the Registration Statement or the Final Prospectus (excluding any document incorporated therein by reference) are fairly summarized in all material respects.
(ix) Except as set forth on Schedule III, to such counsel's knowledge, there are no material legal proceedings pending or threatened against the Company or any of the Subsidiaries which are of a character required to be disclosed in the Final Prospectus and which has not been properly disclosed therein.
(x) The execution and delivery of the Indenture, the issuance and sale of the Securities and the execution and delivery of this Agreement and the consummation of the transactions herein contemplated do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, (a) the Articles of Incorporation or (b) By-laws of the Company, or (c) to such counsel's knowledge, any agreement or instrument filed as an exhibit to the Company's most recent annual report on Form 10-K or any subsequent quarterly report of the Company on Form 10-Q (other than licenses or permits granted by the FCC, on which such counsel need not express any opinion), or (d) will not contravene any law, rule or regulation of the United States or the State of Texas or the General Corporation Law of the State of Delaware, or, to such counsel's knowledge, any order or decree of any court or governmental agency or instrumentality, except, with respect to clause (c) above, a conflict, breach or default which would not have a materially adverse effect on the business or financial condition of the Company and its subsidiaries taken as a whole.
(xi) This Agreement has been duly authorized, executed and delivered by the Company.
(xii) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body having jurisdiction over the Company is necessary in connection with the execution and delivery of this Agreement and the consummation of the transactions herein contemplated (other than as may be required by the NASD or NYSE or as required by State securities and Blue Sky laws as to which such counsel need express no opinion) except such as have been obtained or made, specifying the same.
(xiii) The Company is not, and will not become, as a result of the consummation of the transactions contemplated by this Agreement, and application of the net proceeds therefor as described in the Final Prospectus, required to register as an investment company under the 1940 Act. In rendering such opinion, such counsel may rely (A) as to matters involving governed by the application of laws of any jurisdiction states other than the State of Delaware Texas or the Federal laws of the United States, to the extent they deem proper and specified on local counsel in such opinionjurisdictions, upon provided that in each case such counsel shall state that they believe that they and the opinion of Underwriters are justified in relying on such 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 officialscertificates or other written statements of officers or departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and any Subsidiary. References In addition to the matters set forth above, such opinion shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that the Registration Statement, as of the time it became effective under the Act, the Final Prospectus in this paragraph (bor any amendment or supplement thereto, on the date it was filed pursuant to Rule 424(b) include and the Registration Statement and the Final Prospectus, or any supplements thereto at amendment or supplement thereto, as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that such counsel need express no view as to matters pertaining to the statistical information contained in the Final Prospectus or financial statements, schedules and other financial information contained or incorporated by reference in the Final Prospectus). With respect to such statement, such counsel may state that their belief is based upon the procedures set forth therein, but is without independent check and verification.
(c) The Underwriters shall have received on the Closing Date the opinion of Xxxxx Xxxx & Xxxxxxxx LLP, special FCC counsel to the Company, dated the Closing Date, addressed to the Underwriters as is reasonably acceptable to the Underwriters.
(d) The Representatives shall have received from Xxxxxxx Xxxxxxx Cravath, Swaine & Xxxxxxxx Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesDate, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(de) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, in their opinioncapacity as such, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property representations and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections warranties of the Registration Statement Company in this Agreement are true and any amendment or supplement thereto correct in all material respects on and as of the Closing Date with the same effect as if made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date Date, and the Company has complied with all the agreements and satisfied all the conditions on any later date on which Option Stock are its part to be purchased, contained any untrue statement of a material fact performed or omitted satisfied at or prior to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingClosing Date;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting stop order suspending the business or operations effectiveness of the Company which are pending or threatened against Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company or any of its officers or directors.Company's knowledge, threatened; and
(iii) The Company is listed since the date of the most recent financial statements included in the records Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, business or properties of the United States Patent Company and Trademark Office its subsidiaries, taken as a whole, whether or not arising from transactions in the holder ordinary course of record business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date Ernst & Young LLP shall have furnished to the Representatives letters dated as of the patents listed on a schedule Execution Time and the Closing Date in form and substance satisfactory to such opinion the Representatives.
(g) Except as agreed to by Citigroup Global Markets Inc. and Wachovia Capital Markets, LLC, subsequent to the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselExecution Time, there are no claims shall not have been any decrease in the rating of third parties to any ownership interest or lien with respect to any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purpose of Rule 436(g) under the Act) or Applications. Such counsel is not aware any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material defect 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 in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives. To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of Cravath, Swaine & Xxxxx LLP, counsel for the Applications are being pursued by theUnderwriters, at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Clear Channel Communications 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:
(a1) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM p.m. New York City time on such date or (ii) 9:30 AM a.m. on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, supplement will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b2) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx furnished to the Representatives the opinion of Palmxx & Xxxxxx, Professional CorporationXodge LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, 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 both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives to the effect that:
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Samples: Underwriting Agreement (Dyax Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities Shares and the Option SecuritiesShares, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein in this Underwriting Agreement 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 under this Underwriting Agreement and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree Representative agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of either of the Disclosure Package or the International Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Disclosure Package and the International Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); the ADR Registration shall be effective and no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & XxxxxxXxxx LLP, Professional Corporation, United States counsel for the Company, to have furnished to the Representatives Representative their opinion, dated the Closing Date and addressed to the RepresentativesRepresentative, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing DateExhibit B hereto.
(c) The Company shall have requested and caused Xxxxxxx, Angoitia, Xxxxxx x Xxxxxxx, S.C., Mexican counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Representative, in the form of Exhibit C hereto.
(d) The Depositary shall have requested and caused Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, to have furnished to the Representative their opinion dated the Closing Date and addressed to the Representative, in the form of Exhibit D hereto.
(e) The Representatives shall have received from Milbank, Tweed, Xxxxxx & XxXxxx LLP and Xxxxx, Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLPy Xxxxxxxxxx, S.C. counsel for the UnderwritersRepresentative, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the SecuritiesShares, the Registration Statement, the ADR Registration Statement, the Disclosure Package and the International 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.
(df) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chairman of the Board or the principal executive officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the International Prospectus, any supplements to the Disclosure Package and the International Prospectus and this Underwriting Agreement and the Mexican Underwriting Agreement and that:
(i) the representations and warranties of the Company in this Underwriting Agreement and the Mexican Underwriting Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) to the Company’s knowledge, no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement has been issued and no proceedings for that purpose have been instituted or, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the International Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the International Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, following audit firms to have furnished to the Representatives their opinionRepresentative letters, dated respectively as of the Execution Time and as of the Closing Date Date, in the forms attached as Exhibits E-1 through E-5 and addressed to otherwise covering such matters as the Representatives to the effect that:Representative requests.
(i) As to the statements under the captions "Risk Factors-- Our intellectual property and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual PropertyXxxxxxx/Ernst & Young," nothing has come to the attention of such counsel which caused them to believe that the above-mentioned sections of the Registration Statement and any amendment or supplement thereto made available and reviewed by such counsel, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material actionKPMG Xxxxxxxx Xxxxx, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directors.S.C.,
(iii) The Company BDO Xxxxxxx LLP,
(iv) BDO Xxxxxxxxx Xxxxxx y Cía., S.A., and
(v) KPMG LLP.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is listed given in the records Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the International Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the United States Patent Company and Trademark Office its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the International Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Global Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the ADR Registration Statement, the Disclosure Package and the International Prospectus (exclusive of any supplement thereto).
(i) The Deposit Agreement shall be in full force and effect.
(j) The Depositary shall have furnished or caused to be furnished to the Representative certificates satisfactory to the Representative evidencing the deposit with the Custodian of the Underlying Shares in respect of which ADSs to be purchased by the Underwriters on such Closing Date are to be issued, and the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing such ADSs pursuant to the Deposit Agreement and such other matters related thereto as the holder Representative reasonably requests.
(k) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(l) The ADRs shall have been listed and admitted and authorized for trading on the American Stock Exchange, and satisfactory evidence of record such actions shall have been provided to the Representative. The Series B Shares shall have been listed and admitted and authorized for trading on the Mexican Stock Exchange, and satisfactory evidence of such actions shall have been provided to the patents listed on Representative.
(m) Prior to the Execution Time, the Company shall have furnished to the Representative a schedule to such opinion (letter substantially in the "Patents") and form of Exhibit A hereto from each of the applications listed shareholders identified in the tables entitled “Major Shareholders” in the International Prospectus and each officer and director of the Company addressed to the Representative.
(n) The delivery of the Mexican Shares pursuant to the Mexican Underwriting Agreement shall have occurred.
(o) The Company shall have, pursuant to Section 17 of the Underwriting Agreement, validly and irrevocably appointed CT Corporation System as its agent for the purposes described in such Section 17; and personal service of process effected on such agent in any manner permitted by applicable law will be effective to confer valid personal jurisdiction over the Company in any such action. For such purposes, the Underwriters shall have received an original instrument (escritura pública) issued by a schedule notary public in Mexico, evidencing an irrevocable power of attorney granted by the Company in favor of CT Corporation System for the purposes referred to such opinion in Section 17 hereof, together with a letter from CT Corporation System accepting the appointment conferred on it by the Company.
(p) All approvals required under the "Applications")laws of Mexico at the Closing Time shall have been obtained including, where applicable, the registration of the Global Shares with the Mexican National Registry of Securities, the approval of the public offering by the Mexican National Banking and Securities Commission, the listing and admittance and authorization for trading of the Global Shares by the Mexican Stock Exchange and the approval of certain special conditions in connection with the public offering in Mexico of the Mexican Shares from the Mexican Stock Exchange.
(q) Any Shares to be delivered in the form of Series B Shares shall have been deposited and credited prior to or at the time of closing to the account designated by the Representative with Indeval;
(r) Such other matters related thereto as the Representative may reasonably request shall have been addressed to the Representative’s satisfaction. To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to If any of the Patents conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Underwriting Agreement, or Applications. Such counsel is if any of the opinions and certificates mentioned above or elsewhere in this Underwriting Agreement shall not aware of any material defect be reasonably satisfactory in form in and substance to the preparation or filing Representative and counsel for the Representative, this Underwriting Agreement and all obligations of the Applications on behalf of Underwriters under this Underwriting Agreement may be canceled at, or at any time prior to, the CompanyClosing Date by the Representative. To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Milbank, Tweed, Xxxxxx & XxXxxx LLP, United States counsel for the Applications are being pursued by theRepresentative, at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the 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) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional CorporationCoie LLP, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, Representatives substantially in substantially the form attached hereto as EXHIBIT A. of Annex A hereto. In rendering such opiniontheir opinion as aforesaid, such counsel may rely (A) upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Company as to matters involving the application of laws of any jurisdiction other than the United States or the State of Delaware or the Federal laws Washington, provided that (1) each such local counsel is acceptable to you, (2) such reliance is expressly authorized by each opinion so relied upon and a copy of the United Stateseach such opinion is delivered to you and is, in forma and substance satisfactory to the extent they deem proper them and specified their counsel, and (3) counsel shall state in such opinion, upon the their opinion of other counsel of good standing whom that they believe to be reliable that they and who are satisfactory to counsel for the Underwriters Underwriter is justified in relying thereon; and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxxx Xxxxxxx King & Xxxxxxxx LLPSpalding, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, to have furnished to the Representatives their opiniona certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated the Closing Date and addressed to the Representatives Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) As the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the statements under Closing Date;
(ii) no stop order suspending the captions "Risk Factors-- Our intellectual property effectiveness of the Registration Statement has been issued and proprietary rights may be insufficient to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's attention and could be costly" and "Business-- Intellectual Property," nothing has come no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the three-month period ended March 31, 2002, and as at March 31, 2002, in accordance with Statement on Auditing Standards No. 71, and stating in effect, except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the three-month period ended March 31, 2002, and as at March 31, 2002; 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 compensation committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2001, nothing came to their attention of such counsel which caused them to believe that the above-mentioned sections of that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and any amendment the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or supplement thereto made available incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and reviewed said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by such counsel, at the time reference in the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingFinal Prospectus;
(ii2) Such counsel knows with respect to the period subsequent to March 31, 2002, there were any changes, at a specified date not more than five days prior to the date of no material actionthe letter, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting in the business or operations consolidated total debt (defined as lines of credit plus notes payable) of the Company which are pending and its subsidiaries or threatened against capital stock of the Company or decreases in consolidated assets or the shareholders' equity of the Company as compared with the amounts shown on the March 31, 2002 consolidated balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from April 1, 2002, to such specified date there were any decreases, as compared with March 31, 2001, in consolidated revenue or income before income taxes or in total or per share amounts of net income of the Company and its officers subsidiaries, except in all instances for changes or directors.decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives;
(3) the information included or incorporated by reference in the Registration Statement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) The Company they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is listed in limited to accounting, financial or statistical information derived from the general accounting records of the United States Patent Company and Trademark Office its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information set forth under the captions "Capitalization" and "Selected Financial Information" in the Final Prospectus, the information included or incorporated by reference in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company 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 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) and the Final Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the holder of record of Representatives may reasonably request.
(h) Subsequent to the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counselExecution Time, there are no claims shall not have been any decrease in the rating of third parties to any ownership interest or lien with respect to any of the Patents Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or Applications. Such counsel is not aware any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company addressed to the Representatives. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material defect 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 in and substance to the preparation or filing Representatives and counsel for the Underwriters, this Agreement and all obligations of the Applications on behalf of Underwriters hereunder may be canceled at, or at any time prior to, the CompanyClosing Date by the Representatives . To the knowledge Notice of such counselcancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of King & Spalding, counsel for the Applications are being pursued by theUnderwriters, at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Shurgard Storage Centers Inc)
Conditions to the Obligations of the Underwriters. The -------------------------------------------------- obligations of the U.S. Underwriters to purchase the U.S. Underwritten Securities and the U.S. Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein in this U.S. Underwriting Agreement 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 under this U.S. Underwriting Agreement and to the following additional conditions:
(a) If the Registration Statement has Statements have not become effective prior to the Execution Time, unless the U.S. Representatives and the International Representatives agree in writing to a later time, the Registration Statement Statements will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the ProspectusFinal Prospectuses, or any supplement thereto, is required pursuant to Rule 424(b), the ProspectusFinal Prospectuses, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement Statements shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxx Xxxxxxxx Xxxx & Xxxxxx, Professional CorporationXxxxxxxxx, counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as EXHIBIT A. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws Representatives on behalf of the United StatesUnderwriters, to the extent they deem proper and specified in such effect of Exhibit A.
(c) The Company shall have caused Xxxxxxx Berlin Shereff Xxxxxxxx LLP, regulatory counsel for the Company, to have furnished to the Representatives their opinion, upon dated the Closing Date and addressed to the Representatives on behalf of the Underwriters, to the effect of Exhibit B.
(d) The Company shall have caused Osler, Xxxxxx & Harcourt, Canadian regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date, and addressed to the Representatives on behalf of the Underwriters, to the effect of Exhibit C.
(e) The Company shall have furnished to the Representatives the opinion of other counsel Xxxxxx X. Xxxxxx, Senior Vice President, General Counsel and Secretary of good standing whom they believe the Company, dated the Closing Date and addressed to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters Representatives on behalf of factthe Underwriters, to the extent they deem proper, on certificates effect of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.Exhibit D.
(cf) The Representatives shall have received from Xxxxxxx Xxxxxxx Cravath, Swaine & Xxxxxxxx LLPXxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesRepresentatives on behalf of the Underwriters, with respect to the issuance and sale of the Securities, the Registration StatementStatements, the Prospectus Final Prospectuses (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.
(dg) The Company shall have furnished to the Representatives a certificate of the Company, signed by the President and Chief Executive Officer and the Executive Vice President and Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statements, the Final Prospectuses, any supplements to the Final Prospectuses and the Underwriting Agreements and that:
(i) the representations and warranties of the Company in the Underwriting Agreements are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statements have been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since December 31, 1999, the date of the most recent financial statements included or incorporated by reference in the Final Prospectuses (exclusive of any supplements thereto), there has not been, singularly or in the aggregate, any Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectuses (exclusive of any supplement thereto).
(h) The Company shall have requested and caused both Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxxxx & Xxxxxx, LLP, intellectual property counsels for the Company, PricewaterhouseCoopers LLP to have furnished to the Representatives their opinionRepresentatives, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date Date, in form and addressed substance reasonably satisfactory to the Representatives to Representatives, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants and stating in effect that:
(i) As in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statements and the Final Prospectuses and reported on by them comply as to form in all material respects with the statements under applicable accounting requirements of the captions "Risk Factors-- Our intellectual property Securities Act and proprietary rights may be insufficient the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) nothing came to protect our competitive position" and "--We may be subject to intellectual property rights disputes which could divert management's their attention and could be costly" and "Business-- Intellectual Property," nothing has come to the attention of such counsel which caused them to believe that the aboveinformation included or incorporated by reference in the Registration Statements and the Final Prospectuses in response to Regulation S-mentioned sections K, Item 301 (Selected Financial Data) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) in the Final Prospectuses, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. All references in this Section 6(h) to the Registration Statement Statements or the Final Prospectuses shall be deemed to include any amendments or supplements thereto at the date of the letter.
(i) At the Execution Time and at the Closing Date, Xxxxxx Xxxxxxxx LLP shall have furnished to the Representatives a letter or letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the applicable rules and regulations thereunder and Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statements and Final Prospectuses reported on by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission; and
(ii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statements and the Final Prospectuses, and the information included or incorporated by reference in the Company's Annual Report on Form 10-K for the year ended December 31, 1999, incorporated by reference in the Registration Statements and the Final Prospectuses, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. All references in this Section 6(i) to the Registration Statements or the Final Prospectuses shall be deemed to include any amendment or supplement thereto made available at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statements (exclusive of any amendment thereof) and reviewed the Final Prospectuses (exclusive of any supplement thereto), there shall not have been (i) any increase, change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the properties, business, results of operations, financial condition, affairs or business prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectuses (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 Final Prospectuses (exclusive of any supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been (i) any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act) or (ii) any notice given of any intended or potential decrease in any such counselrating or that such organization has under surveillance or review (other than any such notice with positive implications of a possible upgrading) its rating of the Company's debt securities.
(l) The Securities shall have been listed and admitted and authorized for trading, subject to official notice of issuance, on the Nasdaq National Market, and reasonably satisfactory evidence of such actions shall have been provided to the Representatives.
(m) The closing of the purchase of the U.S. Underwritten Securities to be issued and sold by the Company pursuant to the U.S. Underwriting Agreement shall occur concurrently with the closing of the International Underwritten Securities to be issued and sold by the Company pursuant to the International Underwriting Agreement.
(n) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this U.S. Underwriting Agreement and the International Underwriting Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this U.S. Underwriting Agreement shall not be in all material respects reasonably satisfactory in form and substance to the U.S. Representatives and counsel for the U.S. Underwriters, this U.S. Underwriting Agreement and all obligations of the U.S. Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the U.S. Representatives. Notice of such cancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Cravath, Swaine & Xxxxx, counsel for the Underwriters, at the time the Registration Statement became effective and at all times subsequent thereto up to and 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date and on any later date on which Option Stock are to be purchased, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) Such counsel knows of no material action, suit, claim or proceeding relating to patents, patent rights or licenses, trademarks or trademark rights, copyrights, collaborative research, licenses or royalty arrangements or agreements or trade secrets, know-how or proprietary techniques, including processes and substances, owned by or affecting the business or operations of the Company which are pending or threatened against the Company or any of its officers or directorsDate.
(iii) The Company is listed in the records of the United States Patent and Trademark Office as the holder of record of the patents listed on a schedule to such opinion (the "Patents") and each of the applications listed on a schedule to such opinion (the "Applications"). To the knowledge of such counsel, there are no claims of third parties to any ownership interest or lien with respect to any of the Patents or Applications. Such counsel is not aware of any material defect in form in the preparation or filing of the Applications on behalf of the Company. To the knowledge of such counsel, the Applications are being pursued by the
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Level 3 Communications Inc)
